Trujillo et al v. Bank of America, NA et al

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
Carla Jean Trujillo, et al. v. Bank of America, NA, et al.
05-01034
Order Granting in Part, Denying in Part [7-1] Motion To Dismiss Adversary
Proceeding by Bank of America, NA .
Received on: 2005-08-19 09:58:15.000
2005-08-19 00:00:00.000
2005-08-22 00:00:00.000
Ellen Snyder
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
Carla Jean Trujillo and
Steve Benedict Trujillo,
Debtors. No. 7-04-11325 MA
Carla Jean Trujillo and
Steve Benedict Trujillo,
Plaintiffs,
v. Adv. No. 05-1034 M
Bank of America, N.A., Chex Systems, Inc. and
Wells Fargo Bank, N.A.,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
BANK OF AMERICA’S MOTION TO DISMISS
THIS MATTER is before the Court on the Motion to Dismiss Complaint (“Motion”) filed by
Defendant, Bank of America, N.A. (“Bank of America”). Plaintiffs’ allegations concerning both Bank
of America and Wells Fargo in the verified complaint (the “Complaint”) are relevant to this Motion and
are as follows:
Plaintiffs filed a voluntary Chapter 7 bankruptcy petition on February 26, 2004. On the date of
the bankruptcy filing, Plaintiffs had an overdraft amount of $584.84 attributable to their bank account
with Bank of America. Complaint Ex. A. Plaintiffs listed Bank of America as a creditor in their
bankruptcy schedules. Complaint Ex. B. A notice of bankruptcy filing was sent to Bank of America on
February 29, 2005. Complaint Ex. C.
On February 4, 2005, about three weeks before the bankruptcy filing, the Plaintiffs opened a
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1 The letter stated the following:
In reviewing your account(s), we found activity or information representing potential risk to
Wells Fargo and you. Therefore, as of the date of this letter, we have begun the process of
closing your account(s). Any ATM card(s) assigned to our account(s) has been deactivated,
checks and preauthorized debits presented may be returned unpaid, and preauthorized credits
may not post to your account.
We took this action for the following reason:
Information received from ChexSystems, an account verification service. If you would like to
review the information provided by ChexSystems, refer to the enclosed form to contact Chex
Systems directly. . . .
The process of closing your account(s) is scheduled to be completed April 2_, 2004. On that
date, a bank check for any remaining balance(s) due to you will be mailed to your most recent
address of record.
If your account is overdrawn, please make a deposit in the exact amount of the overdraft. If
your account(s) has a negative balance on the scheduled date of closure, you are responsible
for payment of any outstanding balance(s). . . .
Complaint Ex E.
2
new bank account at Wells Fargo Bank, N.A. (“Wells Fargo”). Complaint Ex. D. After opening the
account and arranging for direct deposit with Wells Fargo, Plaintiffs terminated direct deposit
arrangements with Bank of America. Complaint ¶ 10. Sometime before April 14, 2004, Plaintiffs
contacted Wells Fargo customer service to confirm the direct deposit arrangements and were informed
that a hold was placed on the account and that a letter of explanation would follow. Complaint ¶ 11.
Wells Fargo sent a letter dated April 14, 2004 notifying Plaintiffs that their account would be closed
based on information received from Defendant, Chex Systems, Inc. (“Chex Systems”). Complaint ¶ 12
and Ex. E (Letter from Donald D. Vattuone, Vice President, Wells Fargo Deposit Operations Service
Center, San Francisco, California).1
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Wells Fargo employees informed Plaintiffs that Chex Systems reports bank account abuse to
member banks, which may disqualify a consumer for account services. Complaint ¶ 13. Wells Fargo
employees also informed Plaintiffs that the notation on the Chex Systems’ report was made by Bank of
America, and that as long as the Bank of America notation remained on the Chex Systems report,
neither Wells Fargo nor any reputable bank would provide Plaintiffs consumer banking services.
Complaint ¶ 14. Wells Fargo employees suggested that Plaintiffs return to Bank of America to resolve
the matter and that written notice of any resolution with Bank of America would not be honored at
Wells Fargo unless the notice was sent directly from Bank of America. Complaint ¶¶ 15 and 21.
Plaintiffs informed the Wells Fargo employees that they had recently filed bankruptcy and that the debt
to Bank of America was included in the bankruptcy schedules. Complaint ¶ 16.
Plaintiffs went to the Bank of America offices in Albuquerque and requested that Bank of
America arrange for the removal of the notation from the report of Chex Systems to allow them to
continue to do business with Wells Fargo. Complaint ¶ 17. Bank of America employees informed them
that the balance of all overdrafts was $658.83 and that the matter would only be resolved by payment
of all overdraft amounts to Bank of America. Complaint ¶ 18. Plaintiffs informed Bank of America
employees of their bankruptcy, but the employees made no offer to change the Chex Systems report
until Plaintiffs paid the overdraft. Complaint ¶¶ 19 and 20.
On or about April 16, 2004, Plaintiffs delivered a cashier’s check in the amount of $658.83
payable to Bank of America Overdraft Recovery Services. Complaint ¶ 22 and Ex. F. In exchange
for the payment, Bank of America employees issued a letter dated April 16, 2004, to Plaintiff, Carla
Jean Trujillo. The letter stated the following:
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2 Rule 12, Fed.R.Civ.P. is made applicable to bankruptcy proceedings by Rule 7012,
Fed.R.Bankr.P.
4
Thank you for your recent inquiry on the above referenced account.
Our records now reflect that the debt referenced above has been paid in full as of April 16,
2004.
It is Bank of America’s practice to report accounts that are closed by the bank to
ChexSystems. This information is retained for a period of five years. However, after
completing our research we have decided to remove this record from ChexSystems. Please be
advised that Chex Systems requires approximately 5 to 7 business days for processing this
request.
This letter may be used as proof that you have satisfied this debt with Bank of America.
Complaint Ex. G.
At Plaintiffs’ request, Bank of America faxed a copy of the letter to Wells Fargo on April 16,
2004 and after Wells Fargo could not locate the first fax, Bank of America faxed the letter again the
next day. Complaint ¶ 24.
Wells Fargo’s hold on Plaintiffs’ account caused five checks to be returned for insufficient funds
in the total amount of $303.19 plus bank fees of $140.00. Complaint ¶ 30. The returned checks were
dated April 18 and 19, 2004. Complaint Ex. H.
Discussion
A court may dismiss a cause of action under Federal Rule of Civil Procedure 12(b)(6)2 for
failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts that would
entitle the plaintiff to relief. DiMezza v. First USA Bank, Inc., 103 F.Supp.2d 1296,1298 (D.N.M.
2000), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); and H.J.
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Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195
(1989). When considering a Rule 12(b)(6) motion, the Court assumes as true all well-pleaded facts,
and must draw all reasonable inferences in favor of the plaintiff. DeMezza, 103 F. Supp.2d at 1298,
citing, Housing Auth. of the Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th
Cir.1991).
Plaintiffs’ First Claim for Relief asserts that Bank of America is liable for a willful violation of the
automatic stay alleging that Bank of America used its ability to remove the notation on the Chex
Systems report as leverage to collect payment of the pre-petition overdraft debt.
The filing of bankruptcy petition stays “any act to collect, assess, or recover a claim against the
debtor that arose before the commencement of the case under this title.” 11 U.S.C. § 362(a)(6). The
automatic stay is intended to stop all collections efforts. Spaulding v. Citizens Federal Savings and
Loan (In re Spaulding),116 B.R. 567, 570 (Bankr. S.D. Ohio 1990). “The conduct prohibited by
this [stay] provision ranges from that of an informal nature, such as telephone contact or dunning letters,
to more formal judicial and administrative proceedings also stayed under § 362(a)(1).” Matter of
Sommersdorf, 139 B.R. 700, 701 (Bankr.S.D.Ohio, May 24, 1991). A “willful violation” does not
require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a
finding that the defendant knew of the bankruptcy and that the defendant's actions which violated the
stay were intentional. In re Suarez, 149 B.R. 193, 196 (Bankr. D.N.M. 1993).
First, Bank of America argues that reporting the overdraft to Chex Systems did not violate the
stay. Bank of America asserts that courts have found that making a report to a credit reporting agency,
either pre-petition or post-petition does not violate the stay. See Hickson v. Home Federal of
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3 A voluntary payment of an otherwise dischargeable debt is subject to the reaffirmation
provisions of the Bankruptcy Code § 524(c)(requiring a hearing and opportunity for debtor to rescind
within 60 days).
6
Atlanta, 805 F. Supp. 1567, 1573 (N.D.Ga. 1992)(dismissing claims that creditor violated stay by
reporting pre-petition to credit agencies debtor’s failure to make payments under a Note) The
Hickson court held that making a legitimate report to a credit agency, even if done post-petition, was
not a stay violation. The court reasoned, “[s]ection 362 contains no language prohibiting creditors or
any other party from making legitimate reports to credit agencies regarding parties that have filed for
bankruptcy.” Id. See also Gordon v. Summit Bank (In re Gordon), 2000 W.L. 713742 at * 2,
(Bankr.E.D.Pa. 2000)(discussing Hickson and ruling after trial that refusal to alter pre-petition report to
credit agency did not violate stay).
Next, Bank of America argues that it did not “act to collect the debt,” but simply accepted a
voluntary payment from Plaintiffs, which is not prohibited by the Bankruptcy Code. See 11 U.S.C. §
524(f).3 Bank of America also argues that this was not an “act to collect” because Bank of America
did not initiate a collection; instead, Plaintiffs approached Bank of America asking it to remove the
negative report. Bank of America states that it was not coercing payment, but was unwilling to change
an otherwise accurate report. According to Bank of America, only payment of the overdraft would
cause the report to become inaccurate, requiring a correction. In sum, Bank of America asserts that it
was Plaintiffs who chose to pay the overdraft rather than live with the consequences of the overdraft,
i.e. the notation on the Chex Systems report.
The Plaintiffs allege that Bank of America did more than simply report to Chex Systems and
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4 Section 1301 states, “after the order for relief under this chapter, a creditor may not act, or
commence or continue any civil action, to collect all or any part of a consumer debt of the debtor from
any individual that is liable on such debt with the debtor, or that secured such debt,
. . .” 11 U.S.C. § 1301.
7
accept a payment. Plaintiffs allege that Bank of America used its ability to remove the report as
leverage to collect an otherwise dischargeable debt. Some courts have found that a creditor can be
liable for a violation of the stay if the creditor made a report to a credit reporting agency with intent to
coerce payment of a pre-petition debt. In Singley v. American General Finance (In re Singley), 233
B.R.170 (Bankr.S.D.Ga. 1999), the court denied the creditor’s motion for summary judgment on
plaintiff’s claim that a post-petition report regarding a non-filing co-debtor was a violation of the stay
set forth in 11 U.S.C. § 1301.4 The court stated, “. . . even if it is true that [the] report to the credit
bureau contains truthful information that is a matter of public record, such a report, if made with the
intent to harass or coerce a debtor into paying a pre-petition debt, could violate the automatic stays of
§§ 362 and/or 1301.” Id. at 173. In Sommersdorf, 139 B.R. at 701 the chapter 13 debtors moved
for contempt for violation of the stay in § 362 and the co-debtor stay in § 1301. After confirmation of
the chapter 13 plan with a 100% payout to this creditor, the creditor published an entry on the credit
report of a non-filing co-debtor, reflecting that the bank had taken a profit and loss write-off on the
account. As a result, the co-debtor was unable to obtain a home loan. The court noted that placing a
notation on an obligor’s credit report if done in an effort to effect collection of the account is “just the
type of creditor shenanigans intended to be prohibited by the automatic stay.” Id. The court found that
the creditor had violated the co-debtor stay of § 1301 and ordered the creditor to remove the report
from co-debtor’s credit report. Even though the court did not find a violation of § 362, the court found
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that the both stay provisions § 362 and § 1301 are designed to protect the debtor and awarded
damages to the debtor. Id. at 702. See also King v. World Omni Financial Corp. (In re King),
1998 W.L. 34064508 at *2 (Bankr. S.D. Ga. 1998)(denying defendant’s summary judgment on claim
of violation of co-debtor stay with evidence that after the bankruptcy was filed, the creditor made an
inaccurate report that the non-debtor’s account was “included in bankruptcy”).
Some courts, however, find no violation of the stay when a creditor refuses to remove a pre-
petition notation on a credit report. In Gordon the Court found that the bank, who made pre-petition a
report to Chex Systems, did not violate the stay. See Gordon, 2000 W.L. 713742 at * 2. The debtor
attempted to remedy by presenting a dishonored check to the bank. The debtor testified that he was
told by bank employees that he had to pay the full amount owed to the bank plus 25% penalty in order
for the bank to remove the report. The evidence showed that the notation prevented the debtor from
opening an account in any other Chex Systems member bank, and that although the 25% penalty
charged to remove the notation would not be enforced, the notation would remain on the report post-
discharge. The court in Gordon noted that it had denied a motion to dismiss under Rule 12(b)(6)
because it was unprepared to hold that as a matter of law no violation of stay could occur under these
circumstances. Id. Noting the lack of authority on “the pertinent and ‘seemingly-recurrent, issue of
whether the credit reporting of a dischargeable or discharged debt violates § 362(a)(6),” Id. at *1, the
court distinguished Sommersdorf because it involved a post-petition report to a credit reporting
agency. Id. However, the court agreed with the holding in Hickson that the making of a legitimate
report to a credit agency regarding a debtor’s indebtedness, even if done post-petition, was not a stay
violation. The court characterized the bank’s actions as equivalent to the “everyday refusal of a
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creditor to request a credit reporting agency to delete a dischargeable or discharged debt and the
decision not to do future business with a debtor,” which are not stay violations. Id. at * 2.
This Court finds the reasoning in Singley and Sommersdorf more persuasive and concludes
that when examined in their entirety, Plaintiffs’ allegations and the inferences therefrom state a claim that
Bank of America, after receiving notice of the bankruptcy, used its ability to remove the notation on the
Chex Systems report to coerce Plaintiffs into paying a pre-petition debt. Therefore, the Complaint
sufficiently states a claim for willful violation of the stay, and the Motion will be denied as to the First
Claim for Relief.
The Second Claim for Relief alleges that Bank of America violated the New Mexico Unfair
Practices Act, NMSA 1978 §§ 57-12-1, et seq. (2000 Repl. Pamp.) (2004 Cum. Supp.)
(“NMUPA”). Under the NMUPA claims may be brought for unfair or deceptive trade practices.
Under the NMUPA an “unfair or deceptive trade practice” means
. . . a false or misleading oral or written statement, visual description or other representation of
any kind knowingly made in connection with . . . the extension of credit or in the collection of
debts by a person in the regular course of his trade or commerce, which may, tends to or does
deceive or mislead any person.” NMSA 1978 § 57-12-2D (2004 Cum. Supp.).
Plaintiffs allege that all of the Defendants willfully violated the NMUPA by “making false or misleading
oral or written statements knowingly made in connection with the collection of a debt by Defendants in
the regular course of their trade or commerce which did tend to or did deceive or mislead Plaintiffs that
nonpayment of the debt would result in the imminent closure of Plaintiffs’ federally insured deposit
account and denial of banking privileges any where else.” Complaint ¶ 35.
To establish a violation of the NMUPA in connection with debt collection, Plaintiffs must prove
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that Bank of America made an oral or written statement that was false or misleading, the false or
misleading statement was knowingly made in connection with collection of debt, the representation
occurred in regular course of trade or commerce, and the representation may, tends to, or does
deceive or mislead any person. Russey v. Rankin, 911 F.Supp. 1449, 1459-60 (D.N.M.1995).
Bank of America argues that Plaintiffs fail to allege what misleading statements were made by
its representatives. In the Complaint Plaintiffs allege that Bank of America’s representatives stated that
non-payment of the debt would result in the imminent closure of Plaintiffs’ bank account and denial of
banking privileges anywhere else. However, in the factual allegations section of the Complaint, Plaintiffs
allege that Wells Fargo representatives made these statements. In addition to these oral statements,
Plaintiffs have indicated that written statements, presumably made by Bank of America in its letter dated
April 16, 2004, were misleading. The Court has previously found sufficient allegations that Bank of
America was seeking to collect its debt in its post-petition dealings with Plaintiffs. Therefore, Plaintiffs
have alleged that the statements in this letter were in connection with the collection of a debt. The last
two elements of the NMUPA claim are also sufficiently alleged, i.e. that the statements were made in
the ordinary course of Bank of America’s trade or commerce and that the statements could deceive
Plaintiffs. The Court cannot say that Plaintiffs could prove no set of facts in support of their claim;
therefore, Plaintiffs have stated a claim under the NMUPA. The Motion will be denied as to the
Second Claim for Relief.
The Third Claim for Relief alleges that Bank of America violated the Fair Debt Collection
Practices Act 15 U.S.C. §§ 1692-1692(o) (FDCPA). To establish violation of the FDCPA, a plaintiff
must demonstrate that 1) he has been object of collection activity arising from a consumer debt; 2) the
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defendant attempting to collect debt qualifies as "debt collector" under the FDCPA; and 3) the
defendant has engaged in a prohibited act or has failed to perform requirement imposed by FDCPA.
Russey v. Rankin, 911 F.Supp. at 1453.
Bank of America argues that it is not a “debt collector” as defined in the FDCPA. The
FDCPA defines debt collector as follows:
The term "debt collector" means any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is the collection of any
debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another. . . 15 U.S.C. § 1692a(6)(emphasis added).
The FDCPA establishes two alternative requirements for “debt collector” status. Either the
party must engage in debt collection activity as the principal purpose of its business or the party
regularly engages in such activity. Goldstein v. Hutton, 374 F.3d 56, 61 (2nd Cir. 2004).
In the Complaint Plaintiffs make the following allegations:
. . . Bank of America, Chex System and Wells Fargo Bank violated the FDCPA. Defendants’
violations include but are not limited to: a. representations or implications that nonpayment of
the debt would result in the imminent closure of Plaintiffs’ federally insured deposit account
when such action would not have been lawful . . . b. threats to take legal actions that could not
have been legally taken . . . c. failure to provide Plaintiffs within five days of the various
Defendants’ initial communication a validation notice as required by 15 U.S.C. § 1692g.
Complaint ¶¶ 38 a-c.
The Court finds that Plaintiffs do not allege facts from which the Court could determine that
Bank of America is a debt collector as defined by the FDCPA. See Azar v. Hayter, 874 F.Supp.
1314, 1319 (N.D. Fla. 1995)(stating that plaintiffs failed to state a claim under FDCPA because
plaintiff did not allege facts from which the court could determine whether defendants were debt
collectors as defined under the FDCPA). Plaintiffs, therefore, fail to state a cause of action against
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5 The Court has entered an order dismissing all of the claims against Chex Systems. See Order
Granting Chex Systems’ Motion to Dismiss Complaint, entered on June 28, 2005 (Doc. 28).
12
Bank of America under the FDCPA.
The Fourth Claim for Relief only involves claims against Defendant Chex Systems.5
The Fifth Claim for Relief alleges that Bank of America violated the Fair Credit Reporting Act,
15 U.S.C. §§ 1681 et seq. (FCRA). The FCRA imposes duties on consumer reporting agencies,
users of consumer reports, and furnishers of information to consumer reporting agencies. See 15
U.S.C. § 1681, et seq.
Plaintiffs claim that Bank of America violated the FCRA.
a. By willfully and/or negligently failing to describe in its notice to Plaintiffs that an investigative
report is one which would include information as to Plaintiffs’ character, general reputation,
personal characteristics and mode of living, i.e. ‘bank account abuser’ in violation of §
1681d(a)(1) of the Act; b. By willfully and/or negligently failing to maintain reasonable
procedures to assure compliance with § 1681d(a)(1) of the Act in regard to providing
consumers with disclosures that investigative reports include information as to Plaintiff’s
character, general reputation, personal characteristics and mode of living, i.e. ‘bank account
abuser’ and c. By willfully and/or negligently failing to disclose to Plaintiff their right to request
additional disclosures of the nature and scope of the investigation. Complaint ¶¶ 54a-c.
Section 1681d(a)(1) provides:
(a) Disclosure of fact of preparation
A person may not procure or cause to be prepared an investigative consumer report on any
consumer unless--
(1) it is clearly and accurately disclosed to the consumer that an investigative consumer report
including information as to his character, general reputation, personal characteristics, and mode
of living, whichever are applicable, may be made, and such disclosure (A) is made in a writing
mailed, or otherwise delivered, to the consumer, not later than three days after the date on
which the report was first requested, and (B) includes a statement informing the consumer of his
right to request the additional disclosures provided for under subsection (b) of this section and
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the written summary of the rights of the consumer prepared pursuant to section 1681g(c) of this
title. 15 U.S.C. § 1681d(a)(1).
Section 1681a(e) of the FCRA provides the definition of the term “investigative report” as
follows:
The term “investigative consumer report” means a consumer report or portion thereof in which
information on a consumer's character, general reputation, personal characteristics, or mode of
living is obtained through personal interviews with neighbors, friends, or associates of the
consumer reported on or with others with whom he is acquainted or who may have knowledge
concerning any such items of information. However, such information shall not include specific
factual information on a consumer's credit record obtained directly from a creditor of the
consumer or from a consumer reporting agency when such information was obtained directly
from a creditor of the consumer or from the consumer.”15 U.S.C. § 1681a(e).
Plaintiffs argue that the Chex Systems report to the extent it includes references to account abuse by
Plaintiffs, constitutes an investigative report under the FCRA. However, there are no facts alleged from
which this Court can find that the Chex Systems report is an “investigative consumer report.” There are
no allegations that the information was from “personal interviews with neighbors, friends, or associates
of the consumer.” The allegations state that the source of the information in the report was Bank of
America, which is not a neighbor, friend or associate of Plaintiffs. Therefore, the Court finds that the
allegations by Plaintiffs that Bank of America violated the FCRA provisions applicable to “investigative
reports” should be dismissed for failure to state a claim upon which relief can be granted. See Clark v.
State Farm Fire & Cas. Ins. Co., 54 F.3d 669 (10th Cir. 1995)(upholding finding that report was not
“investigative consumer report” because only listed credit transactions and did not fit within the
definition of § 1681a(e)); Belshaw v. Credit Bureau of Prescott, 392 F.Supp. 1356, 1361 (D. Ariz.
1975) (finding that since complaint alleged only that consumer report, not investigative consumer report,
was prepared, plaintiff’s allegation that defendant violated provisions regarding investigative consumer
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6 Bank of America argues that the Complaint also fails to state a claim against it as a “furnisher
of information” under the FCRA. However, no where in their Complaint do Plaintiffs allege that Bank
of America is a liable as a “furnisher of information” under the FCRA.
14
reports should be dismissed for failure to state a claim).6
For the above stated reasons, the Court hereby grants the Motion as to the Third and Fifth
Claims for Relief in the Complaint, which assert liability under the FDCPA and the FCRA. The Court
denies the Motion as to the First and Second Claims for Relief alleging violation of the stay and
violation of the NMUPA.
WHEREFORE, IT IS HEREBY ORDERED that the Third and Fifth Claims for Relief in the
Complaint are dismissed.
MARK B. McFEELEY
UNITED STATES BANKRUPTCY JUDGE
I certify that on the date shown on the attached document verification, a true and correct copy of
the foregoing was either electronically transmitted, faxed, delivered or mailed to the listed counsel
and/or parties.
Steven H. Mazer
Attorney for Plaintiffs
122 10th Street N.W.
Albuquerque, NM 87102
Steven E. Sessions
Attorney for Plaintiffs
122 10th Street N.W.
Albuquerque, NM 87102
William R. Keleher
Attorney for Bank of America
P.O. Box 2168
Bank of America Centre
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Albuquerque, NM 87103-2168
Alicia L. Gutierrez
Attorney for Wells Fargo Bank, N.A.
P.O. Box 27047
Albuquerque, NM 87125
Ellen C. Snyder
Law Clerk
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