Opinion

Valdellon v. Wells Fargo Bank, N.A.

Court
United States Bankruptcy Court, E.D. California
Filed
May 17, 2024
Cited by
0 cases
Authority
More cited than 30.0%

“[C]ompensatory 26 civil contempt allows an aggrieved debtor to obtain compensatory 27 damages, attorneys fees, and the offending creditor’s compliance 28 with the discharge injunction.”

How later courts described this case

  • “[C]ompensatory 26 civil contempt allows an aggrieved debtor to obtain compensatory 27 damages, attorneys fees, and the offending creditor’s compliance 28 with the discharge injunction.”
  • “We ° cannot say that Congress intended to create a private right of action under § 524, and we shall not imply one.”
  • “We 21} have recently held that section 524(a) may be enforced by the 22 court’s contempt power under 11 U.S.C. section 105(a).”
  • applying Dawson’s three-part 15 test to violations of the discharge injunction

Written by the judges who cited it.

The opinion

1 FOR PUBLICATION

2 UNITED STATES BANKRUPTCY COURT

3 EASTERN DISTRICT OF CALIFORNIA

4

In re: ) Case No. 14-22555-B-13

5 )

MELANIO L. VALDELLON and ELLEN ) Adversary No. 21-2008

6 C. VALDELLON, )

) DC No. PHH-3

7

)

8 Debtor(s). )

________________________________)

9 )

MELANIO L. VALDELLON and ELLEN )

10 C. VALDELLON, )

)

11 )

Plaintiff(s), )

12 )

v. )

13 )

WELLS FARGO BANK, N.A.; PHH; )

14 IMPAC CMB TRUST SERIES 2005-6; )

WELLS FARGO BANK, N.A., AS )

15 TRUSTEE OF THE IMPAC CMB TRUST )

SERIES 2005-6, )

16 )

)

17 Defendant(s). )

________________________________)

18

19

20 ORDER ON RECONSIDERATION AND AMENDED OPINION

21

Mark A. Wolff, Wolff & Wolff, Elk Grove, CA, for plaintiffs.

22

Robert W. Norman, Jr., Neil J. Cooper, Houser LLP, Irvine, CA,

23 for defendants.

24 CHRISTOPHER D. JAIME, Bankruptcy Judge:

25 ORDER ON RECONSIDERATION

26 After the court issued its opinion, a dismissal order, and a

27 judgment on April 30, 2024, Plaintiffs Melanio L. Valdellon and

28 Ellen C. Valdellon (“Plaintiffs”) filed a motion for

reconsideration on May 14, 2024. Adv. Docket 141. Filed within

2 |} fourteen days after entry of the opinion, dismissal order, and

3] judgment Plaintiffs’ motion for reconsideration is governed by

Federal Rule of Civil Procedure 59(e) applicable by Federal Rule

of Bankruptcy Procedure 9023. First Avenue West Building, LLC v.

6 James (In re Onecast Media, Inc.), 439 F.3d 558, 561-62 (9th Cir.

2006). No response is necessary. See Perez-Reyes v. National

8 Distribution Centers, LLC, 2018 WL 7077183 (C.D. Cal. Feb. 8,

° 2018) (granting ex parte application under Rule 59(e)).

As a result of Plaintiffs’ timely Rule 59(e) motion, the

opinion, dismissal order, and judgment of April 30, 2024, are not

yet final. In re Sundquist, 570 B.R. 92, 95 (Bankr. E.D. Cal.

14 2017). The procedural consequence of Plaintiffs’ timely motion

15 is to suspend the time for appeal until fourteen days after entry

16 of the order disposing of the motion for reconsideration. Fed.

17 R. Bankr. P. 8002(b) (1) (B). Until the motion for reconsideration

18 is decided, this court continues to have jurisdiction over the

19 entire dispute. Sundguist, 570 B.R. at 95. Indeed, as the

20 || United States Supreme Court explained in Banister v. Davis, 590

504, 516 (2020): “A Rule 59(e) motion briefly suspends

finality to enable a district court to fix any mistakes and

23 || thereby perfect its judgment before a possible appeal.”

24 There are four grounds on which a Rule 59(e) motion may be

25 || granted: (1) to correct manifest errors of law or fact upon which

26 the judgment rests; (2) to present newly discovered or previously

27 unavailable evidence; (3) to prevent manifest injustice; or (4)

28 if amendment is justified by an intervening change in controlling

law. Allstate Insurance Company v. Herron, 634 F.3d 1101, 1111

~-2-

1 (9th Cir. 2011). Plaintiffs’ motion relies exclusively on the

2 first ground.

3 Plaintiffs’ motion for reconsideration is ORDERED GRANTED IN

4 PART and the opinion of April 30, 2024, is AMENDED as follows:

5 (1) to clarify that Plaintiffs’ claim for emotional distress

6

damages is dismissed with prejudice to the extent it is based on

7

a violation of 11 U.S.C. § 524(i)-which treats a violation of its

8

terms as a violation of the discharge injunction in 11 U.S.C. §

9

524(a)(2)-and dismissed without prejudice to the extent it is

10

based on facts or conduct that do not constitute a violation of

11

§§ 524(i) and/or 524(a)(2); and (2) to correct and amend the

12

factual predicate for dismissal of Plaintiffs’ § 524(i) claim but

13

not change the with prejudice dismissal of the claim. All other

14

relief requested in the motion is ORDERED DENIED.

15

An amended dismissal order and an amended judgment will

16

issue.

17

18 FURTHER ORDERED that Plaintiffs have fourteen days from the

19 entry of this order and amended opinion, the amended dismissal

20 order, and the amended judgment to file any appropriate appeal.

21

22 AMENDED OPINION

23 I.

Introduction

24

A bankruptcy discharge operates as an injunction against the

25

collection of a discharged debt as a personal liability of the

26

debtor. See 11 U.S.C. § 524(a)(2).1 A violation of the

27

28

1Section 524(a)(2) states as follows

1 discharge injunction is an act of civil contempt for which the

2 bankruptcy court may award compensatory damages as are necessary

3 or appropriate to enforce the discharge injunction or remedy its

4 violation. See 11 U.S.C. § 105(a).2 This opinion holds that the

5 compensatory damages a bankruptcy court may award to enforce the

6

discharge injunction or remedy its violation-either directly or

7

under 11 U.S.C. § 524(i) which treats a violation of its terms as

8

a violation of the discharge injunction-do not include emotional

9

distress damages.3 Taggart v. Lorenzen, 139 S. Ct. 1795 (2019),

10

11 (a) A discharge in a case under this title— ... (2)

operates as an injunction against the commencement or

12

continuation of an action, the employment of process,

13 or an act, to collect, recover or offset any such debt

as a personal liability of the debtor, whether or not

14 discharge of such debt is waived[.]

15 11 U.S.C. § 524(a)(2).

16

2Section 105(a) states as follows:

17

(a) The court may issue any order, process, or judgment

18 that is necessary or appropriate to carry out the

provisions of this title. No provision of this title

19 providing for the raising of an issue by a party in

interest shall be construed to preclude the court from,

20

sua sponte, taking any action or making any

21 determination necessary or appropriate to enforce or

implement court orders or rules, or to prevent an abuse

22 of process.

23 11 U.S.C. § 105(a).

24 3Section 524(i) states as follows:

25

The willful failure of a creditor to credit payments

26 received under a plan confirmed under this title,

unless the order confirming the plan is revoked, the

27 plan is in default, or the creditor has not received

payments required to be made under the plan in the

28 manner required by the plan (including crediting the

amounts required under the plan), shall constitute a

violation of an injunction under subsection (a)(2) if

1 in which the United States Supreme Court stated that the “old

2 soil” of injunction enforcement and the “traditional principles”

3 of civil contempt apply “straightforwardly” to the discharge

4 injunction compels this result.

5 The remainder of this opinion explains why a claim alleged

6

under § 524(i) fails as a matter of law and as implausible. And

7

the opinion explains why, without a § 524 claim, this court lacks

8

jurisdiction over remaining non-core state law claims under 28

9

U.S.C. § 1334 or, even if jurisdiction exists or is ever found to

10

exist, the court would abstain under 28 U.S.C. § 1334(c)(1).4

11

12

II.

13 Background

14 Defendants Wells Fargo Bank, N.A., as Indenture Trustee

15 Under the Indenture Relating to the IMPAC CMB Trust Series

16 2005-6, and PHH Mortgage Corporation (collectively,

17

“Defendants”), move to dismiss Plaintiffs’ Second Amended

18

Complaint for 1. Violations of 11 U.S.C. 524(i) [sic]; 2.

19

20

the act of the creditor to collect and failure to

21 credit payments in the manner required by the plan

caused material injury to the debtor.

22

11 U.S.C. § 524(i).

23

4Section 1334(c)(1) states as follows:

24

(c)(1) Except with respect to a case under chapter 15

25

of title 11, nothing in this section prevents a

26 district court in the interest of justice, or in the

interest of comity with State courts or respect for

27 State law, from abstaining from hearing a particular

proceeding arising under title 11 or arising in or

28 related to a case under title 11.

28 U.S.C. § 1334(c)(1).

1 Intentional Infliction of Emotional Distress; 3. Contract Actions

2 or Declaratory Relief; and 4. Unlawful Fraudulent and Unfair

3 Business Acts and Practices (California Business and Professions

4 Code 17200 et seq, 17203 [sic]) (“SAC” or “second amended

5 complaint”). For the reasons explained below, Defendants’ motion

6

will be granted. The § 524(i) claim in Count 1 will be dismissed

7

with prejudice. The intentional infliction of emotional distress

8

claim in Count 2 will be dismissed with prejudice to the extent

9

it is based on a violation of § 524(i)-which treats a violation

10

of its terms as a violation of the discharge injunction in §

11

524(a)(2)-and dismissed without prejudice to the extent not based

12

on facts or conduct which violate §§ 524(i) and/or 524(a)(2).

13

The remaining state law claims in Counts 3 and 4 will be

14

dismissed without prejudice.

15

A. The Loan and the Property

16

The subject of this adversary proceeding is a loan that Mr.

17

18 Valdellon obtained in 2005 secured by real property located in

19 Roseville, California.5 SAC ¶¶ 3, 9-13; Valdellon v. Wells Fargo

20 Bank, N.A., et al. (In re Valdellon), 2024 WL 404404, at *1 (E.D.

21 Cal. Feb. 2, 2024). Defendant PHH has been the servicer of the

22 loan since 2019. SAC ¶¶ 10, 39; Bankr. Docket 135. Defendant

23 Wells Fargo Bank, N.A., as Indenture Trustee, is the owner of the

24 loan. SAC ¶¶ 11-12.

25

26

5At the inception of this adversary proceeding, Plaintiffs

27 asserted that the property was their principal residence when

they filed their bankruptcy petition. Plaintiffs’ New York state

28 tax returns established that Plaintiffs were New York residents,

and they claimed state tuition tax benefits based on New York

residency, when they filed their petition. See Adv. Docket 48.

1 B. Plaintiffs’ Chapter 13 Bankruptcy Case and This

Adversary Proceeding

2

Plaintiffs were debtors in the parent chapter 13 case. They

3

filed a chapter 13 petition and an initial sixty-month chapter 13

4

plan on March 13, 2014. SAC ¶¶ 16, 18, 19; Bankr. Dockets 1, 7.

5

The first plan payment was due “not later than the 25th day of

6

7 each month beginning the month after the order for relief under

8 chapter 13.” Bankr. Dockets 7 at § 1.01, 105 at § 2.01.

9 Plaintiffs filed a first amended plan on April 24, 2014.

10 SAC ¶ 20; Bankr. Dockets 31-36. The first amended plan was

11 confirmed on August 1, 2014. SAC ¶ 21; Bankr. Docket 49.

12 To adjust payments for certain tax debts, Plaintiffs filed a

13 first modified plan and a motion to confirm it on July 21, 2015.

14 SAC ¶ 24; Bankr. Dockets 61-66. The first modified plan was

15 confirmed on December 10, 2015. SAC ¶ 25; Bankr. Dkt. 68.

16 Plaintiffs defaulted on payments required by the first

17

modified plan because, on November 29, 2017, the chapter 13

18

trustee (“Trustee”) filed a Notice of Default and Application to

19

Dismiss which stated as follows:

20

Debtor has failed to make all payments due under the

21 plan. As of November 28, 2017, payments are delinquent

in the amount of $4,574.00. In order to discharge this

22 Notice of Default, you must cure this delinquency AND

make all subsequent payments that are due within the

23 next 30 days. Because your next payment of $2,798.00

will become due on December 25, 2017, the TOTAL amount

24 you must pay by December 29, 2017 is $7,372.00.

25 Bankr. Docket 70 (emphasis in original).

26 The Trustee also filed a motion to dismiss Plaintiffs’

27 chapter 13 case on May 11, 2018. Bankr. Docket 92. Although

28

Plaintiffs opposed the Trustee’s motion on June 4, 2018, they

nevertheless agreed with the Trustee and proposed to file a

1 second modified plan before the motion to dismiss was heard.

2 Bankr. Docket 98.

3 Plaintiffs filed a second modified plan on June 15, 2018.

4 SAC ¶ 26; Bankr. Dockets 101-106. The second modified plan was

5 confirmed on August 24, 2018. SAC ¶ 27; Bankr. Docket 110. The

6

second modified plan is Plaintiffs’ operative confirmed chapter

7

13 plan for purposes of this adversary proceeding. Valdellon,

8

2024 WL 404404 at *1.

9

All of Plaintiffs’ confirmed chapter 13 plans provided for

10

payment of Defendants’ claim as a Class 1 secured claim over a

11

sixty-month period, i.e., prepetition arrears and ongoing

12

postpetition mortgage payments were paid through the Trustee

13

according to § 1322(b)(5).6 SAC ¶¶ 28, 29, 146-148. The amount

14

of arrears to be paid under the second modified plan (and all

15

plans prior) was $19,140.48, as stated in a July 10, 2015, proof

16

of claim. SAC ¶¶ 162-163; Bankr. Claims Register, Claim 9-1.

17

18 Following confirmation of the second modified plan,

19 Plaintiffs again defaulted so, on September 9, 2019, the Trustee

20 moved to dismiss Plaintiffs’ chapter 13 case. Bankr. Dockets

21 117-121. The motion to dismiss cited two grounds as cause for

22

23 6Section 1322(b)(5) states as follows:

24 (b) Subject to subsections (a) and (c) of this section,

the plan may — ... (5) notwithstanding paragraph (2) of

25

this subsection, provide for the curing of any default

26 within a reasonable time and maintenance of payments

while the case is pending on any unsecured claim or

27 secured claim on which the last payment is due after

the date on which the final payment under the plan is

28 due[.]”

11 U.S.C. § 1322(b)(5).

1 dismissal: (1) “[t]he debtors [were] delinquent to the trustee in

2 the amount of $10,246.37 which represent[ed] approximately 3 plan

3 payments,” Bankr. Docket 117 at ¶ 1; and (2) the “commitment

4 period exceed[ed] the permissible limit imposed by 11 U.S.C.

5 Section 1325(b)(4). The Debtor [sic] is currently in month 66 of

6

a 60 month plan.” Id. at ¶ 2.

7

The Trustee’s motion to dismiss was set for hearing on

8

September 24, 2019. Bankr. Docket 118. However, Plaintiffs

9

apparently cured the payment default sometime after the motion

10

was filed and before it was heard because the motion was

11

withdrawn on September 24, 2019. Bankr. Docket 128.

12

Three days later, on September 27, 2019, the Trustee filed a

13

Notice to Debtor of Completed Plan Payments and Obligation to

14

File Documents which stated “the Chapter 13 Trustee has

15

determined that the Debtor has completed the payments required by

16

the confirmed plan.” SAC ¶ 42; Bankr. Docket 130. On that same

17

18 date, September 27, 2019, the Trustee also filed a Notice of

19 Final Cure Payment which stated that “the amount required to cure

20 the default in [Claim 9] has been paid in full.” SAC ¶ 43;

21 Bankr. Docket 125.

22 Defendants apparently agreed with the Trustee’s final cure

23 notice because on October 18, 2019, they filed a Response to

24 Notice of Final Cure in which they stated, under penalty of

25 perjury, “[c]reditor agrees that the debtors have paid in full

26 the amount required to cure the prepetition default on the

27 creditor’s claim” and “[c]reditor states that the debtor(s) are

28

current with all postpetition payments consistent with §

1322(b)(5) of the Bankruptcy Code including all fees, charges,

1 expenses, escrow, and costs. The next postpetition payment from

2 the debtor(s) is due on: 11/1/2019[.]” SAC ¶ 45-47; Claims

3 Register, Claim 9-1.

4 With plan payments completed, and with Defendants apparently

5 in agreement that with the completion of plan payments all

6

prepetition arrears were cured and postpetition payments were

7

current, the Trustee filed a final report and account on February

8

21, 2020. Bankr. Dockets 138, 139. The final report and account

9

was approved, and the Trustee was relieved of further obligations

10

in Plaintiffs’ chapter 13 case, on May 12, 2020. Bankr. Dockets

11

145, 146. Plaintiffs’ discharge was entered on June 1, 2020.

12

SAC ¶ 48; Bankr. Docket 149. Plaintiffs’ chapter 13 case was

13

closed on June 15, 2020. Bankr. Docket 151.

14

Facing a foreclosure, SAC ¶¶ 96, 107, 113, 125, 234, 206,

15

Plaintiffs reopened their chapter 13 case on January 20, 2021,

16

Bankr. Docket 154, and filed the initial complaint in this

17

18 adversary proceeding on January 21, 2021. Adv. Docket 1.

19 Defendants were served with a copy of the initial complaint and a

20 reissued summons on January 27, 2021. Adv. Docket 9. Defendants

21 filed an answer on March 24, 2021, Adv. Docket 19, and an amended

22 answer on April 9, 2021. Adv. Docket 23.

23 Because the court was unable to comprehend the initial

24 complaint which it characterized as a “shotgun pleading,” on June

25 28, 2021, the court ordered Plaintiffs to file an amended

26 complaint that separately identified each claim, Adv. Docket 47,

27 which they filed on July 13, 2021, Adv. Docket 59, and which

28

Defendants promptly moved to dismiss on July 26, 2021. Adv.

Docket 62. Following an opposition from Plaintiffs and a reply

1 from Defendants, on August 20, 2021, the court issued an order

2 granting Defendants’ motion to dismiss. Plaintiffs’ claims under

3 §§ 524(a) and (i) and an emotional distress claim based on the §

4 524 claims were dismissed with prejudice, and all remaining state

5 law claims were dismissed without prejudice. Adv. Docket 68. A

6

corresponding judgment was entered on August 20, 2021. Adv.

7

Docket 70.

8

Plaintiffs appealed the dismissal order and judgment on

9

September 1, 2021. Adv. Docket 75. Defendants elected to have

10

the appeal heard by the District Court and, on September 28,

11

2021, the appeal was transferred from the Ninth Circuit

12

Bankruptcy Appellate Panel to the District Court. Adv. Docket

13

87. The District Court heard oral argument on November 16, 2023,

14

and on February 2, 2024, it issued an order affirming in part and

15

reversing in part this court’s decision of August 20, 2021. Adv.

16

Docket 102; see also Valdellon, 2024 WL 404404. The District

17

18 Court affirmed dismissal with prejudice of Plaintiffs’ § 524(a)

19 claim and concluded that dismissal of Plaintiffs’ § 524(i) claim

20 was also proper based on how the claim was pled. See Adv.

21 Dockets 114 at 6:3-10, 116 at 6:6-15. However, on de novo

22 review, the District Court stated it would have granted

23 Plaintiffs leave to amend the § 524(i) claim although leave was

24 never requested and amendment was never explained. Valdellon,

25 2024 WL 404404 at *8. The District Court remanded for that

26 purpose and to allow this court to consider an amended § 524(i)

27 claim in the first instance. Id. (“The Bankruptcy Court has not

28

yet considered Debtors’ allegations that payments made by the

trustee under the Plan were misapplied and should give rise to a

1 section 524(i) claim.”). Remand also included leave to re-allege

2 the emotional distress claim that was dismissed with prejudice

3 because it was based on the same factual allegations as the § 524

4 claims and the remaining state law claims that were dismissed

5 without prejudice. Id. at *9-*10.

6

Plaintiffs filed a second amended complaint on March 1,

7

2024. Adv. Docket 106. Like its predecessors, the second

8

amended complaint is a morass of allegations. It also completely

9

disregards the “short and plain statement” directive. See Fed.

10

R. Civ. P. 8(a); Fed. R. Bankr. P. 7008. Plaintiffs apparently

11

require two hundred and forty-eight paragraphs spread over

12

thirty-one pages to allege four “Counts.”

13

Plaintiffs served Defendants with the second amended

14

complaint on March 1, 2024, Adv. Dockets 107-109, and Defendants

15

again promptly moved to dismiss it on March 13, 2024. Adv.

16

Docket 112. Plaintiffs filed an opposition on April 2, 2024,

17

18 Adv. Docket 116, and Defendants filed a reply on April 9, 2024.

19 Adv. Docket 119. The parties also filed supplemental points and

20 authorities addressing the emotional distress claim in Count 2.

21 Adv. Dockets 125, 127. The motion to dismiss was heard on April

22 30, 2024. Appearances were noted on the record.

23 The specifics of each Count, and the reasons for their

24 respective dismissals, are discussed in Section IV, infra.

25

26 III.

Legal Standard

27

A complaint may be dismissed for “failure to state a claim

28

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6);

Fed. R. Bankr. P. 7012(b). “A Rule 12(b) (6) dismissal may be

based on either a lack of a cognizable legal theory or the

absence of sufficient facts alleged under a cognizable legal

4 theory.” Johnson v. Riverside Healthcare System, LP, 534 F.3d

°]1116, 1121 (9th Cir. 2008).

6 “To survive a motion to dismiss, a complaint must contain

7 sufficient factual matter, accepted as true, to ‘state a claim to

8 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

° U.S. 662, 678 (2009) (quoting Bell Atlantic Corporation v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that defendant

14 is liable for the misconduct alleged.” Id. (citing Twombly, 550

15 U.S. at 556).

16 In ruling on a Rule 12(b) (6) motion to dismiss, the court

17 accepts all factual allegations as true and construes them, and

18 reasonable inferences drawn from them, in a light most favorable

19 || to the non-moving party. Arizona Students’ Association v.

20 || Arizona Board of Regents, 824 F.3d 858, 864 (9th Cir. 2016).

Legal conclusions are not accepted as true. Iqbal, 556 U.S. at

22 || 678.

23 The court may also consider limited materials outside the

pleadings. These include documents attached to the complaint,

25 || documents incorporated by reference in the complaint, and matters

26 subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756,

271763 (9th Cir. 2007) (per curium). The latter includes the

28 court’s own records. Kelly v. Johnston, 111 F.2d 613, 615 (9th

Cir. 1940).

~13-

1 IV.

Analysis

2

A. Count 2 - Intentional Infliction of Emotional Distress

3 Based on a Violation of § 524(a)(2) Under § 524(i)

4 Count 2 alleges a claim for intentional infliction of

5 emotional distress “based upon the same common factual

6

allegations as Count 1.” SAC ¶ 208. Count 1 alleges that

7

Defendants violated § 524(i) which treats a violation of its

8

terms as a violation of § 524(a)(2). To the extent Count 2 seeks

9

emotional distress damages for a violation of the discharge

10

injunction it fails as a matter of law. Plaintiffs may not

11

recover emotional distress damages based on a violation of the

12

discharge injunction either directly or through § 524(i).

13

One court recently observed that “[t]here is a disagreement

14

among courts across the circuits on whether damages for emotional

15

distress may be awarded in cases involving the violation of the

16

discharge injunction.” In re Weaver, 2023 WL 3362064, at *7

17

18

(Bankr. E.D. Mich. May 10, 2023).7 The Ninth Circuit has not

19 directly addressed the issue.

20 There is inconsistency on this issue within the Ninth

21

22 7Circuit decisions are also sparse. The First Circuit in

United States v. Torres (In re Torres), 432 F.3d 20, 31 (1st Cir.

23 2005), stated that “sovereign immunity bars awards for emotional

distress damages against the federal government under § 105(a)

24 for any willful violation of § 524, and that immunity is not

waived by § 106” and “recognizing a waiver of sovereign immunity

25

for emotional distress damages in this case would run afoul of §

26 106(a)(5), which forbids the creation of any substantive claim

for relief ‘not otherwise existing under this title, the Federal

27 Rules of Bankruptcy, or non-bankruptcy law.’” In Green Point

Credit, LLC v. McClean (In re McClean), 794 F.3d 1313, 1325 (11th

28 Cir. 2015), the Eleventh Circuit allowed emotional distress

damages for a discharge injunction violation based on a § 362

analysis by analogy. More on this later.

1] Circuit. For example, Idaho bankruptcy courts have held that

2 |} emotional distress damages are not available for violations of

3 || the discharge injunction. In re Pohlman, 2018 WL 3854137, at *6

4 (Bankr. D. Idaho Aug. 10, 2018); In re Urwin, 2010 WL 148645, at

*8 (Bankr. D. Idaho Jan. 14, 2010). But this is an exception to

6 the general practice by courts in the Ninth Circuit which is to

award emotional distress damages by analogizing discharge

injunction violations-and awards of compensatory damages

° thereunder-to violations of the automatic stay-and awards of

compensatory damages thereunder. See In re Feldmeier, 335 B.R.

807, 813 (Bankr. D. Or. 2005) (“Although the Ninth Circuit has

not spoken on this issue, I believe its opinion on the

14 availability of emotional distress damages for violation of the

15 automatic stay is instructive.”). Two opinions illustrate this

16 practice and its corresponding analysis.

17 The bankruptcy court in In re Nordlund, 494 B.R. 507 (Bankr.

18 E.D. Cal. 2011), concluded that emotional distress damages were

19 || recoverable for the creditor’s violations of the discharge

20 || injunction. It reached its decision by relying on the automatic

stay violation analysis in Knupfer v. Lindblade (In re Dyer), 322

22) F.3d 1178 (9th Cir. 2003), and Feldmeier, supra, to conclude that

23 |) to the extent emotional distress damages are compensatory damages

24 recoverable for violations of the automatic stay, by analogy,

25 they are similarly recoverable for violations of the discharge

26 injunction. Id. at 522-23.

27 The Ninth Circuit Bankruptcy Appellate Panel reached a

28 similar conclusion based on a similar analysis six years later in

Ocwen Loan Servicing, LLC v. Marino (In re Marino), 577 B.R. 772

~-15 -

1] (9th Cir. BAP 2017), aff’d in part on other grounds, appeal

dismissed in part, Ocwen Loan Servicing, LLC v. Marino (In re

3 Marino), 949 F.3d 483 (9th Cir. 2020), cert. denied, Marino v.

41 ocwen Loan Servicing, LLC (In re Marino), 141 S. Ct. 1683 (2021).

In Marino, the Ninth Circuit Bankruptcy Appellate Panel wrote as

6 follows:

The Ninth Circuit has allowed emotional distress

8 damages for automatic stay violations when the debtor

*(1) suffer[s] significant harm, (2) clearly

9 establish[es] the significant harm, and (3)

demonstrate[s] a causal connection between that

10 significant harm and the violation of the automatic

stay (as distinct, for instance, from the anxiety and

11 pressures inherent in the bankruptcy process) .’

Snowden v. Check Into Cash of Wash. Inc. (In re

12 Snowden), 769 F.3d 651, 657 (9th Cir. 2014) (quoting

Dawson v. Wash. Mutual Bank, F.A. (In re Dawson), 390

13 F.3d 1139, 1149 (9th Cir. 2004)) (discussing violation

of the automatic stay). The same rule should apply to

14 violations of the discharge injunction. See In re

Nordlund, 494 B.R. at 523 (applying Dawson’s three-part

15 test to violations of the discharge injunction); C_ & W

Asset Acquisition, LLC v. Feagins (In re Feagins), 439

16 B.R. 165, 178 (Bankr. D. Haw. 2010) (‘Although Dawson

17 considered the remedy for violations of the automatic

stay under section 362(k) (1), the same reasoning

18 applies to willful violations of the discharge

injunction.’).

19

Id. at 787.°

20

Notably, Nordlund and Marino predate Taggart. That makes a

21

22

*But see Rushmore Loan Management Services, LLC v. Moon (In

231} re Moon), 2021 WL 62629 (9th Cir. BAP Jan. 7, 2021), appeal

dismissed, 2021 WL 3509163 (9th Cir., Apr. 19, 2021). In

24 Rushmore, “[t]he [bankruptcy] court declined to award [one of the

25 debtors] emotional distress damages, because she testified that

her distress was caused by Rushmore’s discharge injunction

violations, not stay violations.” Id. at *3. The debtors

“challenge[d] the bankruptcy court’s decision to not award

damages for Rushmore’s violation of the discharge injunction.”

Id. at *4. The Ninth Circuit Bankruptcy Appellate Panel

28 ll Goncluded that “[t]he bankruptcy court did not abuse its

discretion by not awarding the [debtors] discharge injunction

violation damages.” Id. at *10.

- 16 -

1 || difference. In several respects, Taggart changes the civil

contempt landscape as it pertains to the discharge injunction and

3 || the compensatory damages that a bankruptcy court may award to

enforce the discharge injunction or remedy its violation.’

First, in Taggart, the Supreme Court explained critical

6 distinctions between the automatic stay and the discharge:

7

An automatic stay is entered at the outset of a

8 bankruptcy proceeding. The statutory provision that

addresses the remedies for violations of automatic

9 stays says that ‘an individual injured by any willful

violation’ of an automatic stay ‘shall recover actual

10 damages, including costs and attorneys' fees, and, in

appropriate circumstances, may recover punitive

11 damages.’ 11 U.S.C. § 362(k) (1). This language,

however, differs from the more general language in

12 section 105(a). Supra, at 1801. The purposes of

automatic stays and discharge orders also differ: A

13 stay aims to prevent damaging disruptions to the

administration of a bankruptcy case in the short run,

14 whereas a discharge is entered at the end of the case

15 and seeks to bind creditors over a much longer period.

16 Taggart, 139 S. Ct. at 1803-04.

17 Second, the Supreme Court rejected a proposal by Taggart to

18 apply the standard that governs a determination of whether the

19 || automatic stay is violated to a determination of whether the

20 | discharge injunction is violated, i.e., “a finding of civil

21 contempt if the creditor was aware of the discharge order and

22

23 "As noted below, Taggart also notes that another purpose of

civil contempt is to coerce compliance. See also United States

241. United Mine Workers of America, 330 U.S. 258, 303-04 (1947);

25 Doyle v. London Guarantee & Accident Company, Limited, 204 U.S.

599, 604-05 (1907). Civil contempt sanctions may therefore

include “mild” punitive damages. Lenore L. Albert-Sheridan, dba

Law Offices of Lenore Albert v. State Bar of California (In re

27 | Albert-Sheridan), --- B.R. ---- 2024 WL 1401289, at *20 (9th Cir.

BAP April 2, 2024) (citing Marino, 577 B.R. 788-89 & n.12). This

28 aspect of civil contempt is not before the court; however, the

court notes that the $4,500,000.00 in punitive damages demanded

by Plaintiffs are anything but “mild.”

- 17 -

1 intended the actions that violated the order.” Id. at 1803.

2 Citing distinct and discernable differences between the automatic

3 stay and the discharge injunction, the Supreme Court concluded

4 “[t]hese differences in language and purpose sufficiently

5 undermine Taggart’s proposal to warrant its rejection.” Id. at

6

1804.

7

Third, the Supreme Court in Taggart made it unmistakably

8

clear that a violation of the discharge injunction is an act of

9

civil contempt governed by historical standards. It explained:

10

Here, the statutes specifying that a discharge order

11 ‘operates as an injunction,’ § 524(a)(2), and that a

court may issue any ‘order’ or ‘judgment’ that is

12 ‘necessary or appropriate’ to ‘carry out’ other

bankruptcy provisions, § 105(a), bring with them the

13 ‘old soil’ that has long governed how courts enforce

injunctions.

14

That ‘old soil’ includes the ‘potent weapon’ of civil

15 contempt. Longshoremen v. Philadelphia Marine Trade

Assn., 389 U.S. 64, 76, 88 S.Ct. 201, 19 L.Ed.2d 236

16 (1967). Under traditional principles of equity

practice, courts have long imposed civil contempt

17

sanctions to ‘coerce the defendant into compliance’

18 with an injunction or ‘compensate the complainant for

losses’ stemming from the defendant’s noncompliance

19 with an injunction. United States v. Mine Workers, 330

U.S. 258, 303–304, 67 S.Ct. 677, 91 L.Ed. 884 (1947);

20 see D. Dobbs & C. Roberts, Law of Remedies § 2.8, p.

132 (3d ed. 2018); J. High, Law of Injunctions § 1449,

21 p. 940 (2d ed. 1880).

22 Id. at 1801.

23 Fourth, and most important, in reference to the “old soil”

24 of civil contempt, the Supreme Court stated that the “traditional

25 civil contempt principles apply straightforwardly to the

26 bankruptcy discharge context.” Id. at 1802.

27 Two salient points emerge from Taggart. First, the place to

28

look to determine if the civil contempt remedy allows bankruptcy

courts to award emotional distress damages for violations of the

1] discharge injunction is the “old soil” of injunction enforcement

its “traditional principles” of civil contempt and not § 362

3 by analogy. Second, the duty of the bankruptcy court is to apply

“old soil” and “traditional principles” concepts

° “straightforwardly” to the discharge injunction.

6 An analysis begins with the recognition that there is no

| private right action to enforce the discharge injunction. Walls

8 v. Wells Fargo Bank, N.A., 276 F.3d 502, 510 (9th Cir. 2002) (“We

° cannot say that Congress intended to create a private right of

action under § 524, and we shall not imply one.”); see also In re

Costa, 172 B.R. 954, 965-66 (Bankr. E.D. Cal. 1994) (same).

Rather, as the Supreme Court explained in Taggart, the discharge

14 injunction is enforced and its violations are remedied through a

15 civil contempt action under § 105(a). Taggart, 139 S. Ct. at

16 1801; see also Brown v. Transworld Systems, Inc., 73 F.4th 1030,

17 1038 (9th Cir. 2023) (“The appropriate remedy [for a violation of

18 the discharge injunction] is contempt of court against the

19 || offending creditor pursuant to 11 U.S.C. § 105(a).”); Renwick v.

20 || Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir. 2002) (“We

21} have recently held that section 524(a) may be enforced by the

22 court’s contempt power under 11 U.S.C. section 105(a).”).

23 A civil contempt action to enforce or remedy violations of

241 the discharge injunction brings with it potential liability for

25 compensatory damages. Walls, 276 F.3d at 507 (“[C]ompensatory

26 civil contempt allows an aggrieved debtor to obtain compensatory

27 damages, attorneys fees, and the offending creditor’s compliance

28 with the discharge injunction.”); see also Brown, 73 F.4th at

1038 (reaffirming availability of compensatory damages as stated

~19-

Walls). But what exactly are compensatory damages? Bohac v.

2 i} Department of Agriculture, 239 F.3d 1334 (Fed. Cir. 2001), offers

3] the following explanation and notes a critical distinction:

4 Compensatory damages are the damages awarded to a

5 person as compensation, indemnity or restitution for

harm sustained by him. Restatement (Second) of Torts §

6 903 (1979). Compensatory damages are divided into two

categories: pecuniary and non-pecuniary. Id. at §§

7 905 and 906. Non-pecuniary compensatory damages

include compensation for bodily harm and emotional

8 distress, and are awarded without proof of pecuniary

loss. Id. at § 905.

° Id. at 1341 (internal quotation marks omitted).

Fundamental is that the Supreme Court and the Ninth Circuit

put emotional distress damages in the nonpecuniary category.

Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 227

14 (2022) (emotional distress damages are typically awarded “where

15 the injury entails more than a pecuniary loss”); Federal Aviation

16 Administration v. Cooper, 566 U.S. 284, 302 (2012) (referring to

17 “mental and emotional harm” as “nonpecuniary”); United States v.

1g | Alvarez, 567 U.S. 709, 749 n.14 (2012) (Alito, J., with whom

Scalia, J., and Thomas, J., joined, dissenting) (“the harm

290} remedied by the torts of . . . intentional infliction of

emotional distress .. . is often nonpecuniary in nature”); Rouse

United States Department of State, 567 F.3d 408, 417 (9th Cir.

2312009) (“The resulting prolonged imprisonment caused Rouse extreme

24 || emotional distress and other nonpecuniary harms.”); Farrens v.

25 Meridian Oil, Inc., 852 F.2d 1289, 1988 WL 79482, at *3 (9th Cir.

26 July 19, 1988) (“Second, the award included nonpecuniary damages

27 for emotional distress and loss of reputation[.]”).

28 Characterization of damages for emotional distress as

nonpecuniary is significant because the “old soil” of injunction

~ 20 -

1 enforcement and its “traditional principles” of civil contempt

2 did not compensate parties injured by injunction violations or

3 other acts of disobedience of court process for nonpecuniary

4 loss, emotional distress or otherwise. In other words, the

5 historical measure of compensation awarded in civil contempt

6

actions was pecuniary loss.

7

The United States largely adopted the English concept of

8

civil contempt and its associated purposes and remedies. Joseph

9

H. Beale, Jr., Contempt of Court, Criminal and Civil, Harvard Law

10

Journal, Vol. 21, No. 3, 161 at 167-69 (1908). The Supreme Court

11

recognized this, and it recognized that English courts limited

12

compensation for civil contempt to pecuniary loss, in its 1897

13

opinion in Hovey v. Elliott, et al.,, 167 U.S. 409 (1897), in

14

which it stated as follows:

15

The conclusion which we have reached accords with that

16 of Daniell, who, in his Chancery Pleadings and Practice

(volume 1, pp. *504, *505), [notes]:

17

18 ... the personal and pecuniary inconvenience

to which a party subjects himself by a

19 contempt of the ordinary process of the

court[.]

20

Id. at 436 (emphasis added).

21

The Supreme Court reiterated this critical point fourteen

22

years later in Gompers v. Buck’s Stove & Range Company, 221 U.S.

23

418 (1911), in which it wrote as follows:

24

In this case the alleged contempt did not consist in

25 the defendant’s refusing to do any affirmative act

required, but rather in doing that which had been

26 prohibited. The only possible remedial relief for such

disobedience would have been to impose a fine for the

27 use of complainant, measured in some degree by the

pecuniary injury caused by the act of disobedience.

28

1}} Id. at 443-44 (emphasis added, citations omitted)

2 The weight of authority from other Circuits also supports

3 conclusion that the civil contempt remedy does not include

4 nonpecuniary compensation for emotional distress. The Eighth

Circuit in McBride v. Coleman, 955 F.2d 571 (8th Cir.), cert.

6 denied, 506 U.S. 819 (1992), which dealt with the power of civil

7 Lae

contempt more generally, not specifically under §§ 105(a) and

8

524(a) (2), vacated a judgment awarding emotional distress damages

9

and in the course of doing so stated as follows:

10

A special word is in order regarding the award of

11 $50,000.00 for emotional distress. Even assuming

arguendo a causal relationship between the violation of

12

13 The Supreme Court cited “Rapalje, Contempts, §§ 131-134”

14 |} to support this passage. The full citation is Stewart Rapalje, A

Treatise on Contempt Including Civil and Criminal Contempts of

15 | Judicial Tribunals, Justices of the Peace, Legislative Bodies,

Municipal Boards, Committees, Notaries, Commissioners, Referees

16! and Other Officers exercising judicial and quasi-judicial

17 functions, L.K. Strouse & Co., Law Publishers (1884). Section

131 is captioned “The fine-what included” and refers to the civil

18 || contempt fine imposed for disobedience of an order or decree as

compensation or indemnity for “pecuniary injury.” Section 133 is

19 || captioned “Compensation to an injured party” and refers to the

“loss or injury” compensated through civil contempt as a

20 “pecuniary loss or injury.”

21 The Supreme Court also supported the passage with citations

to Wells, Fargo & Co. v. Oregon Ry. & Nav. Co., 19 Fed. 20 (Cir.

Or. 1884), Woodruff v. North Bloomfield Gravel-Min. Co. (In

re North Bloomfield Gravel-Min. Co.), 27 Fed. 795 (Cir. Ct. Cal.

23/1886), and Sabin v. Fogarty, 70 Fed. 482 (Cir. Ct. Wash. 1895).

The measure of compensation for the civil contempt in each case

24 was pecuniary loss. Wells, Fargo & Co., 19 Fed. at 23; Woodruff,

25 27 Fed. at 799-800; Sabin, 70 Fed. at 485. Notable is that each

opinion is by a federal appellate court in or what was to become

the Ninth Circuit. So not only does the Ninth Circuit’s

historical civil contempt precedent align neatly with Supreme

271 Court authority, but, the Ninth Circuit’s historical civil

contempt precedent which recognized pecuniary loss as the measure

28 ll of compensation for civil contempt is part of the “old soil” of

injunction enforcement and its “traditional principles” of civil

contempt.

- 22> -

1 the injunction and the harm suffered, we do not believe

civil contempt to be an appropriate vehicle for

2 awarding damages for emotional distress[.] The

problems of proof, assessment, and appropriate

3 compensation attendant to awarding damages for

emotional distress are troublesome enough in the

4 ordinary tort case, and should not be imported into

5 civil contempt proceedings. Although in some

circumstances an award of damages to a party injured by

6 the violation of an injunction may be appropriate, the

contempt power is not to be used as a comprehensive

7 device for redressing private injuries, and it does not

encompass redress for injuries of this sort.

8

Id. at 577 (internal citations omitted).

9

In Burd v. Walters (In re Walters), 868 F.2d 665 (4th Cir.

10

1989), the Fourth Circuit stated that “[n]o authority is offered

11

to support the proposition that emotional distress is an

12

appropriate item of damages for civil contempt, and we know of

13

14 none.” Id. at 670. In Weitzman v. Stein, 98 F.3d 717 (2d Cir.

15 1996), the Second Circuit similarly stated that “the district

16 court was within its right to reject Weitzman’s claim for

17 compensation for the emotional distress she and her husband

18 suffered because of the contempt.” Id. at 720. And in the

19 || context of discussing the Bankruptcy Code, the district court in

20 || United States v. Harchar, 331 B.R. 720 (N.D. Ohio 2005), observed

21] that “[t]here is little indication that awarding damages for

22 emotional harm was commonplace under the bankruptcy court’s

23 | traditional contempt procedures—or in any contempt procedures

241 familiar to Congress in 1984.” Id. at 730 (emphasis in

29 original).

26 In an effort to bring nonpecuniary damages for emotional

27 distress under the civil contempt umbrella, Plaintiffs cite Leman

Krentler-Arnold Last Hinge Co., 284 U.S. 448 (1932), for the

proposition that “an expansive view of damages available in

- 23 -

1 actions for violation of an injunction has long been recognized.”

2 Adv. Docket 127 at 6:24-25. Plaintiffs assert that Leman is

3 authority for the court to use its equitable powers to award

4 nonpecuniary emotional distress damages for civil contempt to

5 “insure full compensation to the injured party.” Leman, 284 U.S.

6

at 456. Plaintiffs misread Leman.

7

Leman was an appeal from a final decree entered in a civil

8

contempt proceeding in which the District Court found a patent

9

infringer guilty of contempt for deliberate violation of an

10

injunction and ordered the contemnor to pay the injured party

11

over $39,000.00 in profits it made as a result of its violation.

12

Id. at 450-51. The Court of Appeals sustained the contempt order

13

but reversed the District Court’s award of profits holding that

14

the profits could not be recovered as a measure of pecuniary

15

loss. More precisely, the Court of Appeals stated as follows:

16

But we are of the opinion that the District Court went

17

far afield and exceeded its authority in decreeing that

18 the complainants recover profits made by the respondent

by the infringement of the letters patent. In Gompers

19 v. Buck’s Store & Range Co., supra, and Kreplik v.

Couch Patents Co., supra, 190 F. at page 569, it was

20 pointed out that the proper remedial relief for the

disobedience of an injunction in an equity case is to

21 impose a ‘fine for the use of the complainant, measured

in some degree by the pecuniary injury caused by the

22 act of disobedience.’ In other words, that the amount

of the fine or remedial relief is to be governed

23 largely by the pecuniary damage or injury which the act

of disobedience caused the complainant. The pecuniary

24 damage surely does not include profits which the

defendant made by reason of the infringement. The item

25 of profits should not have been allowed or taken into

consideration in determining the remedial relief to

26 which the complainants were entitled by way of fine or

otherwise.

27

Krentler-Arnold Hinge Last Co. v. Leman, 50 F.2d 699, 707 (1st

28

1931) (emphasis added)."

2 On the issue of whether the profits were recoverable, the

3 Supreme Court reversed the Court of Appeals. Noting that the

41 amount of profits had been “ascertained” in the District Court

proceedings, Leman, 284 U.S. at 455, the Supreme Court held that

6 the profits were the equivalent of or a substitute for the

injured party’s actual pecuniary loss. Id. at 456; see also Rick

8 v. Buchansky, 2001 WL 936293, *6 (S.D.N.Y. Aug. 16, 2001) (“Where

° actual pecuniary loss is difficult to prove, compensatory relief

may include profits derived by the contemnor from the violation

of a court order.”). In other words, the Supreme Court treated

the profits in the contemnor’s possession “as if” they were the

14 injured party’s compensatory damages. In so doing, the Supreme

15 Court rejected the Court of Appeals’ narrow view of the pecuniary

16 loss recoverable for civil contempt and adopted a more expansive

17 view. Leman, 284 U.S. at 456.

18 The point here is that Leman added more to the bucket of

19 || Pecuniary losses recoverable as compensatory damages for civil

20 || contempt. It did not add new or different types of damages to

21 that bucket, i.e., nonpecuniary for emotional distress or

22 otherwise, as Plaintiffs suggest. In that regard, the court does

23 read Leman as support for the proposition that emotional

241 distress damages are-or historically have been-recoverable for

25

26 ©

‘The Court of Appeals adhered to its initial opinion on

27 rehearing. See Krentler-Arnold Hinge Last Company v. J. Howard

Leman, Administrator, C. T. A., et al., 1931 WL 26200 (lst Cir.

28 June 29, 1931). The rehearing opinion makes it even more clear

that the Court of Appeals considered the profits at issue in the

context of pecuniary loss and not as something else. Id. At *6.

~ 25 -

1 civil contempt.

2 Duty bound here to look to the “old soil” of injunction

3 enforcement and apply its “traditional principles” of civil

4 contempt “straightforwardly” to the discharge injunction, the

5 weight of historical authority compels the court to hold that

6

Plaintiffs may not recover nonpecuniary emotional distress

7

damages based on a claim under § 524(i) which treats a violation

8

of its terms as a violation of § 524(a)(2). The measure of

9

recovery for civil contempt under § 105(a) for a violation of §

10

524(a)(2)-either directly or through § 524(i)-is compensatory

11

damages for pecuniary loss.

12

Count 2 will be dismissed. And because further amendment to

13

claim emotional distress damages for a violation of the discharge

14

injunction would be futile, Count 2 will be dismissed with

15

prejudice and without leave to amend the claim for emotional

16

distress damages based on a violation of §§ 524(i) and/or

17

18 524(a)(2). To the extent Count 2 includes a claim for emotional

19 distress damages based on facts or conduct other than a violation

20 of §§ 524(i) and/or 524(a)(2), any such claim is dismissed

21 without prejudice. Leave to amend to re-allege any such claim in

22 this adversary proceeding will also be denied because any such

23 claim would be subject to the same jurisdictional and abstention

24 analysis applicable to Counts 3 and 4 discussed below making

25 amendment here futile.

26 B. Count 1 - The Amended Claim Under 11 U.S.C. § 524(i)

27 Count 1 alleges that in violation of § 524(i) Defendants

28

willfully failed to credit payments they received from the

Trustee and, thus, Defendants willfully failed to credit payments

1 received “under a plan.” Defendants move to dismiss the amended

2 § 524(i) claim in Count 1 for two reasons: (1) Plaintiffs’

3 second modified plan was in default; and (2) Plaintiffs have not

4 sufficiently alleged that payments Defendants received from the

5 Trustee, i.e., payments “under a plan,” were improperly credited.

6

Defendants’ arguments have merit and the court agrees with both.

7

1. “. . . unless . . . the plan is in default . . .”

8

Section § 524(i) makes it a violation of the discharge

9

injunction of § 524(a)(2) for a creditor to willfully fail to

10

credit payments received “under a plan” if the failure causes

11

material injury “unless . . the plan is in default.” 11 U.S.C. §

12

524(i). There are two relevant defaults for consideration here.

13

The first default was a monetary default in the amount of

14

$10,246.37 which, according to the Trustee, represented

15

approximately 3 plan payments. This monetary default was

16

apparently considered to have been cured sometime before the

17

18 Trustee’s motion to dismiss was heard in September 2019 because

19 the Trustee withdrew the motion and immediately thereafter filed

20 notice that Plaintiffs completed their plan payments.

21 The second default was a nonmonetary default consisting of a

22 chapter 13 plan term that exceeded the applicable (and maximum

23 allowable) sixty-month commitment period by six months and

24 Plaintiffs’ failure to make all of their required plan payments

25 before the sixty-month plan period expired. See 11 U.S.C. §§

26 1322(d), 1325(b)(4).12 As the Trustee noted in his September

27

28 12Section 1322(d) states, in relevant part, that a chapter

13 “plan may not provide for payments over a period that is

longer than 5 years.” 11 U.S.C. § 1322(d).

1 2019 motion to dismiss, when the motion was filed Plaintiffs were

2 in month sixty-six of a sixty month plan and were approximately

3 three plan payments short.

4 Plaintiffs assert they made all of their plan payments

5 within the applicable sixty month period. But that is not how

6

the Trustee’s motion to dismiss reads. The Trustee’s motion to

7

dismiss states that in month sixty-six of a sixty month plan

8

“[t]he debtors [were] delinquent to the trustee in the amount of

9

$10,246.37 which represents approximately 3 plan payment(s).”

10

Bankr. Docket 117 at 1:21-22 (emphasis added). These delinquent

11

payments owed to the Trustee pertained to postpetition mortgage

12

payments, id. at 2:6, which remained unpaid in month sixty-six,

13

id. at 2:7, “due to Debtors’ delinquency and history of making

14

payments late over the course of the plan[.]” Id. at 2:4-5.

15

The court reads the Trustee’s motion to dismiss to mean that

16

during the plan term Plaintiffs made some plan payments late, the

17

18 late plan payments prevented the Trustee from making some

19 mortgage payments during the plan term, and Plaintiffs needed to

20 make these plan payments, as they apparently did in month sixty-

21 six of their sixty month plan, in order to complete all of their

22 plan payments. See Id. at 2:8-10 (“The Trustee cannot make

23 partial payments on post-petition mortgage claims, so in order to

24 complete the plan, the Debtor [sic] needs to make [the

25 delinquent] amount in a lump sum.”). Indeed, that there were

26 unpaid plan payments six months after the sixty month commitment

27

28 Section 1325(b)(4) defines the “applicable commitment

period” for above-median debtors as “not less than 5 years.” 11

U.S.C. § 1325(b)(4).

1 period ended, which were not “post-plan” payments, is confirmed

2 by a September 3, 2019, letter from the Trustee’s office to

3 Plaintiffs submitted as an exhibit to the Trustee’s motion to

4 dismiss which informed Plaintiffs that they “have paid into

5 [their] Chapter 13 Plan a total of $166,184.21, and have an

6

outstanding balance of $10,246.37. ... This is brought to your

7

attention as we feel certain that you, after paying in as much as

8

you have, truly want to bring your Plan to a successful paid-in-

9

full conclusion.” Bankr. Docket 120 at Ex. B.13

10

The point here is that Plaintiffs’ failed to make all of the

11

payments required by their plan before the sixty month maximum

12

commitment period expired and they made the unpaid plan payments

13

six months after the sixty month commitment period expired. That

14

constitutes a material default. Moreover, the material default

15

was (and remains) incurable because in month sixty-six

16

Plaintiffs’ plan could not be modified to accommodate what the

17

18 Trustee clearly characterized and accepted as postpetition plan

19 payments after the commitment period expired. The court

20 therefore reaffirms its conclusion that Plaintiffs’ failure to

21 make all of their plan payments before the sixty-month commitment

22 period expired is (and was) an incurable material default under

23

24 13Plaintiffs’ assertion that they completed plan payments in

March 2019 and their characterization of the payments in default

25

referenced in the Trustee’s motion to dismiss as “post-plan”

26 payments is puzzling given the District Court’s recognition that

Plaintiffs “completed their Plan payments in September 2019 and

27 the trustee filed a Notice of Final Cure on September 27,

2019[,]” Valdellon, 2024 WL 404404 at *2, and the District

28 Court’s characterization of “post-plan” payments as those

Plaintiffs made directly to Defendants from and after October

2019. Id. at *6.

1 |} the second modified plan.’* In re Kinney, 2019 WL 7938815

2 (Bankr. D. Colo. Feb. 27, 2019), aff’d, Kinney v. HSBC Bank USA,

(In re Kinney), 5 F.4th 1136 (10th Cir. 2021), cert. denied,

47143 S. ct. 302 (2022), illustrates this point.

In Kinney, the debtor “failed to make the last three

6 mortgage payments [required under her Chapter 13 plan] during the

| [five year] plan period.” Kinney, 2019 WL 7938815 at *1l.

Instead, the debtor made three payments about two and a half

° months after the end of the five-year chapter 13 plan term and

then requested a discharge anyway. Id. at 1-2. The bankruptcy

court characterized the debtor’s actions as a “material default”

in her chapter 13 plan and dismissed the chapter 13 case without

14 entry of a discharge. Id. at *4. On appeal, the Tenth Circuit

15 affirmed and characterized the debtor’s default as incurable once

16 the plan’s five-year period ended. Kinney, 5 F. 4th at 1140. It

17 emphatically stated: “The bankruptcy code suggests that material

18 defaults cannot be cured after the plan has ended.” Id. at 1143;

19 | In_re Jaggars, 2023 WL 7007491, at *1 (Bankr. E.D. Okl. Oct. 23,

20 || 2023) (“As the parties correctly note, the Tenth Circuit opinion

In re Kinney, 5 F.4th 1136 (10th Cir. 2021) holds that once a

22" plan’s five-year period expires, a bankruptcy court is without

23} authority to allow a debtor to cure a ‘material default.’”).

24 Technically, Plaintiffs should not have been permitted to

25 l}make plan payments after the sixty-month commitment period ended

26

27) OO

“Section 2.03 of Plaintiffs’ second modified plan also

states as follows: “If necessary to complete the plan, monthly

payments may continue for an additional 6 months, but in no event

shall monthly payments continue for more than 60 months.”

-~ 30 -

1 because doing so was an impermissible plan modification under §

2 1329(c).15 Kinney, 5 F.4th at 1144. Dismissal would have been

3 entirely appropriate. But nobody objected and the Trustee

4 withdrew the motion to dismiss so Plaintiffs managed to receive a

5 discharge by the good grace of the Trustee. That, however, does

6

not change the status of the second modified plan as a plan

7

subject to an incurable material default.16 And it is precisely

8

this incurable material default that renders § 524(i)

9

inapplicable as a matter of law because a plan in default will

10

not support a § 524(i) claim. Count 1 will therefore be

11

dismissed with prejudice and without leave to amend.

12

2. “. . . willful failure of a creditor to credit

13 payments received under a plan confirmed under

[Title 11] . . .”

14

It initially bears repeating what the District Court made

15

clear about an amended § 524(i) claim; specifically, that post-

16

plan payments, or payments Plaintiffs began making directly to

17

18

15Section 1329(c) states as follows:

19

A plan modified under this section may not provide for

20

payments over a period that expires after the

21 applicable commitment period under section

1325(b)(1)(B) after the time that the first payment

22 under the original confirmed plan was due, unless the

court, for cause, approves a longer period, but the

23 court may not approve a period that expires after five

years after such time.

24

25 11 U.S.C. § 1329(c).

26 16That a discharge was entered does not change this. See

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010).

27 Moreover, § 1328(a) states that the “as soon as practicable after

completion by the debtor of all payments under the plan . . . the

28 court shall grant the debtor a discharge.” 11 U.S.C. § 1328(a).

Technically, all plan payments were completed. They were just

completed significantly late.

1 Defendants beginning in October 2019 are not payments “under a

2 plan” within the meaning of § 524(i). Valdellon, 2024 WL 404404

3 at *6 (“The Court agrees with the Bankruptcy Court that the

4 post-plan payments were not payments made ‘under the plan.’”).

5 That means the only payments this court need consider as payments

6

“under a plan” for purposes of Plaintiffs’ amended § 524(i) claim

7

are those payments Defendants received from the Trustee through

8

Plaintiffs’ final plan payment in September 2019. Id. at *8

9

(“The Bankruptcy Court has not yet considered Debtors’

10

allegations that payments made by the trustee under the Plan were

11

misapplied and should give rise to a section 524(i) claim.”).

12

Plaintiffs do not identify any specific plan payments that

13

Defendants miscredited. Rather, Defendants’ alleged liability

14

under § 524(i) is based on an inference that arises as follows:

15

(1) the Trustee paid Defendants $19,140.48 in prepetition arrears

16

(as he was obligated to do based on Claim 9-1), SAC ¶ 162, 163,

17

18 169; (2) as of January 17, 2019, statements Plaintiffs received

19 from Defendants showed $19,211.02 credited to prepetition arrears

20 from payments received from the Trustee, SAC ¶ 164 & Ex. 23; and

21 (3) through August 16, 2019, statements Plaintiffs received from

22 Defendants showed $20,623.04 credited to prepetition arrears from

23 payments received from the Trustee, SAC ¶ 165 & Ex. 23. From the

24 differences in arrears actually paid and arrears stated as paid

25 on statements, Plaintiffs surmise that Defendants over-allocated

26 plan payments to prepetition arrears and under-allocated plan

27 payments to postpetition payments. SAC ¶¶ 166-168, 170-172; see

28

also Adv. Docket 116 at 12:3-8 (“Here, Valdellons have alleged

and shown that Defendants credited, from payments made by the

1 Chapter 13 Trustee, more money to pre-petition arrears than was

2 paid by the Chapter 13 Trustee to pre-petition arrears. The only

3 way Defendants could have credited, from payments made by the

4 Chapter 13 Trustee, more money to pre-petition arrears than was

5 paid by the Trustee is for Defendants to have diverted money

6

intended for ongoing maintenance payments to pre-petition

7

arrears.”) (former emphasis added, latter emphasis in original).

8

However, at the same time that Plaintiffs suggest that plan

9

payments were improperly credited, Plaintiffs rely on Defendants’

10

sworn response to the Trustee’s final cure notice to allege that

11

postpetition loan payments made from plan payments were current

12

when the final plan payment was made in September 2019. SAC ¶¶

13

45-47, 146-148.

14

If the court must accept as true that it was undisputed in

15

September 2019 that Plaintiffs’ loan was current as to its

16

postpetition payments, then the only logical conclusion is that

17

18 plan payments were properly credited. Indeed, Plaintiffs concede

19 as much in their opposition. Adv. Docket 116 at 15:20-22 (“If

20 Defendants had credited payments in accordance with the Trustee’s

21 designations and the Trustee’s Notice of Final Cure, Valdellons

22 would be current in payments through September 1, 2019 [sic] with

23 payments made by the Chapter 13 Trustee.”). It cannot be true

24 that plan payments were miscredited and, at the same time,

25 miscredited plan payments cured arrears and kept postpetition

26 payments current. In other words, if plan payments were

27 miscredited as they are alleged to have been, i.e., over-

28

allocated to prepetition arrears and under-allocated to

postpetition payments, Plaintiffs’ loan would not (and could not

1 have been) current as it is alleged it was, and as it is further

2 alleged it was undisputed it was, in September 2019.

3 Based the foregoing, the court concludes that Plaintiffs

4 have not alleged a plausible amended § 524(i) claim. So even if

5 the second modified plan was not a plan in default, Count 1 would

6

nevertheless be dismissed with prejudice and without leave to

7

amend on the foregoing independent and alternative grounds.

8

C. Counts 3 and 4 - Non-Core State Law Claims

9

The claims alleged in Counts 3 and 4 are non-core state law

10

claims. Count 3 alleges claims for breach of contract, negligent

11

infliction of emotional distress, and declaratory relief. SAC ¶¶

12

215-237. Count 4 alleges a claim for Unlawful Fraudulent and

13

Unfair Business Acts and Practices (California Business and

14

Professions Code § 17200 et seq.). SAC ¶¶ 238-248.

15

1. Subject Matter Jurisdiction Under 28 U.S.C. § 1334

16

The non-core state law claims in Counts 3 and 4 do not

17

18 “arise under” Title 11 or “arise in” a case under Title 11. See

19 28 U.S.C. § 1334. They also are not “related to” Plaintiffs’

20 chapter 13 case.

21 “Related to” jurisdiction exists only if, in any way, “the

22 outcome of the proceeding could conceivably have any effect on

23 the estate being administered in bankruptcy.” Fietz v. Great

24 Western Savings (In re Fietz), 852 F.2d 455, 457 (9th Cir. 1988)

25 (internal quotations and citations omitted). The court is

26 hard-pressed to comprehend how, if at all, the non-core state law

27 claims in Counts 3 and 4 could conceivably have any effect

28

whatsoever on the administration of Plaintiffs’ chapter 13 case

inasmuch as Plaintiffs no longer have a chapter 13 case being

1 administered. Creditors in Plaintiffs’ chapter 13 case have been

2 paid. Plaintiffs have completed all plan payments. Plaintiffs’

3 chapter 13 plan has run (if not over-extended) its sixty-month

4 course and the plan term can not be further extended. Plaintiffs

5 have also received a discharge, the Trustee’s final account has

6

been filed and approved, and the Trustee has been relieved of all

7

duties relative to the estate.

8

The point here is that there is nothing more to do or that

9

can be done in Plaintiffs’ chapter 13 case. There is no longer a

10

chapter 13 case or estate to administer. The court therefore

11

concludes it lacks “related to” jurisdiction over the non-core

12

state law claims in Counts 3 and 4 without the Bankruptcy Code

13

claims. The non-core state law claims in Counts 3 and 4 will

14

therefore be dismissed without prejudice.

15

2. Discretionary Abstention Under 28 U.S.C. §

16 1334(c)(1)

17

Even if the court had “related to” jurisdiction over the

18

non-core state law claims in Counts 3 and 4, or if jurisdiction

19

were ever found to exist, the court would nevertheless exercise

20

its discretion to abstain from adjudicating those claims under 28

21

U.S.C. § 1334(c)(1) in the absence of any claim under the

22

Bankruptcy Code. A bankruptcy court considers twelve factors

23

when determining whether to abstain under 28 U.S.C. § 1334(c)(1):

24

(1) the effect or lack thereof on efficient estate

25 administration if the court abstains;

26 (2) the extent to which state law issues predominate

over bankruptcy issues;

27

(3) the difficulty or unsettled nature of applicable

28

law;

(4) the presence of a related proceeding commenced in

1 state court or other non-bankruptcy court;

2 (5) the jurisdictional basis, if any, other than 28

U.S.C. § 1334;

3

(6) the degree of relatedness or remoteness of the

4 proceeding to the main bankruptcy case;

5 (7) the substance rather than form of a ‘core' matter;

6

(8) the feasibility of severing state law claims from

7 core bankruptcy matters to allow judgments to be

entered in state court with enforcement left to the

8 bankruptcy court;

9 (9) the burden on the bankruptcy court’s docket;

10 (10) the likelihood that the commencement of the

proceeding in bankruptcy court involves forum shopping

11 by one of the parties;

12 (11) the existence of a right to a jury trial; and

13 (12) the presence of non-debtor parties.

14 Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.),

15 912 F.2d 1162, 1167 (9th Cir. 1990).

16 First, as noted above, that there is no longer a chapter 13

17

estate necessarily means that abstention can have no effect on

18

the administration of any estate.

19

Second, the non-core claims in Counts 3 and 4 are state law

20

claims.

21

Third, state law relative to the claims in Counts 3 and 4 is

22

not difficult and it is well-developed. The state court is

23

particularly adept at adjudicating those claims.

24

Fourth, absence of a pending state court proceeding is an

25

important-but not determinative-consideration. There is a

26

statement in Security Farms v. International Brotherhood of

27

Teamsters, Chauffers, Warehousemen, and Helpers, 124 F.3d 999,

28

1009-10 (9th Cir. 1997), that could be read to suggest that

1 abstention requires a pending proceeding in another forum.

2 However, Wilks v. United States (In re Wilks), 1999 WL 357919, at

3 *5 (9th Cir. BAP April 22, 1999), dispels any such notion. The

4 court therefore does not view the absence of a pending state

5 court proceeding as an impediment to abstention.

6

Fifth, without Bankruptcy Code claims there is no

7

jurisdictional basis over the non-core state law claims in Counts

8

3 and 4.

9

Sixth, the non-core state law claims in Counts 3 and 4 are

10

remote and not related to Plaintiffs’ chapter 13 case because

11

there no longer is a chapter 13 case being administered.

12

Seventh, the state law claims in Counts 3 and 4 are all

13

non-core matters.

14

Eighth, with the dismissal of Bankruptcy Code claims there

15

are no core matters to sever non-core matters from.

16

Ninth, adjudication by this court of the non-core state law

17

18 claims in Counts 3 and 4 that a state court is equally capable of

19 determining would place a burden on this court’s docket in that

20 it would take judicial resources more appropriately dedicated to

21 core jurisdictional matters.

22 Tenth, the court perceives no forum shopping. Plaintiffs

23 filed in this court on the basis of Count 1.

24 Eleventh, Defendants may be entitled to a jury trial on the

25 non-core state law claims in Counts 3 and 4. Any jury trial

26 would be more efficiently handled in state court instead of by a

27 district (or by consent bankruptcy) judge. These claims also

28

raise the specter of the need to obtain Defendants’ consent to

the entry a final judgment by a bankruptcy judge.

1 Twelfth, to the extent Plaintiffs are no longer chapter 13

2 debtors the dispute is between non-debtors.

3 In short, the Tucson Estates factors favor abstention even

4 if “related to” subject matter jurisdiction over the non-core

5 state law claims in Counts 3 and 4 exists.

6

7

V.

8 Conclusion

9 Based on the foregoing, Defendants’ motion to dismiss will

10 be GRANTED as follows: (1) the § 524(i) claim in Count 1 will be

11 dismissed with prejudice; (2) the claim for emotional distress

12 damages in Count 2 will be dismissed with prejudice to the extent

13 it is based on a violation of § 524(i) and/or § 524(a)(2) and

14 will be dismissed without prejudice to the extent it is based on

15 facts and conduct that do not constitute a violation of §§ 524(i)

16 and/or 524(a)(2); (3) Counts 3 and 4 will be dismissed without

17

prejudice.

18

A separate amended order granting Plaintiffs’ motion to

19

dismiss and amended judgment will issue.

20

21

22

23

24

25

26

27

28

1 INSTRUCTIONS TO CLERK OF COURT

SERVICE LIST

2

The Clerk of Court is instructed to send the attached

3 document, via the BNC, to the following parties:

4 Mark A. Wolff

8861 Williamson Dr #30

5 Elk Grove CA 95624-7920

6

Robert W. Norman

7 9970 Research Drive

Irvine CA 92618

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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