Christopher Covert v. LVNV Funding, LLC

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 8:13-cv-00698-DKC. [999538730]. [14-1016]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1016

CHRISTOPHER M. COVERT; THOMAS E. HAWORTH; CAROL J. HAWORTH;
KIFLE AYELE; DWAN L. BROWN,
Plaintiffs – Appellants,
v.
LVNV FUNDING, LLC; RESURGENT CAPITAL
PARTNERSHIP; SHERMAN ORIGINATOR LLC,

SERVICES

LIMITED

Defendants – Appellees.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District
Judge. (8:13-cv-00698-DKC)

Argued:

December 11, 2014

Decided:

March 3, 2015

Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.

Affirmed by published opinion.
Judge Shedd wrote the opinion,
in which Judge Niemeyer and Judge Keenan joined.

ARGUED: Laura J. Margulies, LAURA MARGULIES & ASSOCIATES, LLC,
Rockville, Maryland, for Appellants.
Ronald S. Canter, LAW
OFFICES OF RONALD S. CANTER, LLC, Rockville, Maryland, for
Appellees.
ON BRIEF:
Lawrence P. Block, Janet M. Nesse,
STINSON LEONARD STREET LLP, Washington, D.C., for Appellants.

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SHEDD, Circuit Judge:
Christopher M. Covert, Thomas E. Haworth, Carol J. Haworth,
Kifle Ayele, and Dwan L. Brown (collectively “Plaintiffs”) each
separately

filed

a

petition

for

Chapter 13 in Maryland in 2008.
its

affiliated

companies

individual

bankruptcy

under

LVNV Funding, LLC (“LVNV”) and

(collectively

“Defendants”)

held

an

unsecured claim against each Plaintiff and filed proofs of those
claims in each proceeding. 1

Each Chapter 13 plan was approved,

the Defendants’ claims were allowed, and each Plaintiff made
payments on these claims.

In March 2013, the Plaintiffs filed

this putative class action lawsuit in the District of Maryland,
alleging that the Defendants had violated the federal Fair Debt
Collection Practices Act (FDCPA) and various Maryland laws by
filing these proofs of claim without a Maryland debt collection
license.

The Defendants moved to dismiss and the court granted

the motion, finding that the state common law claims were barred
by res judicata and that the federal and state statutory claims
failed to state a claim because filing a proof of claim does not
constitute an act to collect a debt. For the reasons stated
below, we affirm the dismissal of all claims, but we do so on
res judicata grounds.
1

A proof of claim is a form filed by a creditor in a
bankruptcy proceeding that states the amount the debtor owes to
the creditor and the reason for the debt.

2

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I.
In 2008, each Plaintiff filed a petition for individual
bankruptcy
District

under

of

Chapter

13

Maryland.

in

LVNV

the

had

Bankruptcy
acquired

Court

a

for

defaulted

the
debt

against each Plaintiff from Sherman Originator, LLC, and LVNV
then filed a proof of unsecured claim based on these debts in
each

bankruptcy

Capital

proceeding

Services

Limited

through

its

Partnership.

servicer,
The

Resurgent

bankruptcy

court

confirmed a plan in each proceeding that provided for unsecured
claims to be paid in pro rata amounts.

The Defendants’ claims

were allowed, and they received payments from the Chapter 13
Trustees on these claims.
Defendants

was

licensed

At all relevant times, none of the

to

do

business

as

a

debt

collection

agency in Maryland.
In March 2013, the Plaintiffs filed this lawsuit in the
District of Maryland, alleging that the Defendants had violated
the FDCPA by filing proofs of claim without a Maryland debt
collection license.

The FDCPA defines a “debt collector” as

“any person ... who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed
or due another.”
collectors

“may

15 U.S.C. § 1692a(6).
not

use

any

false,

Under the FDCPA, debt

deceptive,

or

misleading

representation or means in connection with the collection of any
debt,” including “[t]he threat to take any action that cannot
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legally
Code,

Filed: 03/03/2015

be taken,”

it

is

a

15

U.S.C.

misdemeanor

Pg: 4 of 16

§

for

1692e(5).
a

Under

person

to

the

Maryland

“knowingly

and

willfully do business as a collection agency in the State unless
the person has a license.”

Md. Code Ann., Bus. Reg. § 7-401.

The Plaintiffs allege that because the Defendants filed claims
in the bankruptcy proceedings without a license, the Defendants
were not legally entitled to collect those debts and thus took
an “action that cannot legally be taken” in violation of the
FDCPA.

The Plaintiffs also asked for an injunction deeming the

Defendants’

proofs

of

claim

invalid

and

instructing

the

Defendants to return to the Plaintiffs all money paid pursuant
to those claims. 2
Plaintiff
law

claims.

Covert

filed

Specifically,

several
Covert

additional
alleged

Maryland

unjust

state

enrichment,

violations of the Maryland Consumer Debt Collection Act (MCDCA),
and violations of the Maryland Consumer Protection Act (MCPA).
The Defendants moved under Federal Rule of Civil Procedure
12(b)(6) to dismiss all claims for failure to state a claim upon
which relief could be granted.

The district court granted the

2

The Plaintiffs also asserted a claim seeking attorneys’
fees and reasonable expenses incurred in litigating this suit.
Because a request for expenses and attorneys’ fees is not a
separate claim, but rather a request for a particular form of
relief, this request necessarily fails because the underlying
action is barred by res judicata.
We therefore adopt the
reasoning of the district court dismissing this claim.

4

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motion.

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Covert v. LVNV Funding, LLC, No. DKC 13-0698, 2013 WL

6490318 (D. Md. Dec. 9, 2013).

It held that the Maryland unjust

enrichment claim was barred by res judicata, but that the FDCPA,
MCDCA,

and

MCPA

claims

could

not

be

barred

by

res

judicata

absent an adversary proceeding in each bankruptcy action, which
had not occurred.
these

statutory

Nonetheless, the district court dismissed

claims

on

the

merits

because

it

found

that

filing a proof of claim is not a “collection activity” within
the meaning of those statutes.

The Plaintiffs timely appealed.

II.
We

review

de

novo

the

district

court’s

dismissal

complaint for failure to state a claim under 12(b)(6).

of

a

United

States ex rel. Rostholder v. Omnicare, Inc., 745 F.3d 694, 700
(4th Cir. 2014).

Federal law governs the res judicata effect of

earlier bankruptcy proceedings.
F.3d

467,

472

(4th

Cir.

See Grausz v. Englander, 321

2003)

(“We

look

to

res

judicata

principles developed in our own case law to determine whether an
earlier federal judgment, including the judgment of a bankruptcy
court, bars a claim asserted in a later action.”).
“Under res judicata principles, a prior judgment between
the same parties can preclude subsequent litigation on those
matters

actually

adjudication.”

and

necessarily

resolved

in

the

first

In re Varat Enters., Inc., 81 F.3d 1310, 1314-15
5

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(4th Cir. 1996).

Pg: 6 of 16

As we have applied it, the doctrine of res

judicata encompasses two concepts: claim preclusion, which bars
later litigation of all claims that were actually adjudicated or
that could have been adjudicated in an earlier action, and issue
preclusion, which bars later litigation of legal and factual
issues that were “actually and necessarily determined” in an
earlier

action.

Id.

at

1315

(internal

citation

omitted).

Rather than attempting to draw a sharp distinction between these
two aspects here, we conduct our analysis under the general res
judicata
cases.

framework,

as

has

been

our

practice

in

bankruptcy

We have held that a prior bankruptcy judgment has res

judicata effect on future litigation when the following three
conditions are met:
1) [T]he prior judgment was final and on the merits,
and rendered by a court of competent jurisdiction in
accordance with the requirements of due process; 2)
the parties are identical, or in privity, in the two
actions; and, 3) the claims in the second matter are
based upon the same cause of action involved in the
earlier proceeding.
Id.

All three requirements are met here.
The

first

requirement

is

easily

satisfied

because

confirmation of a bankruptcy plan is a final judgment on the
merits.
order

See, e.g., id. (“[T]he [bankruptcy plan] confirmation

constitutes

a

final

judgment

on

the

merits

with

res

judicata effect.”); In re Linkous, 990 F.2d 160, 162 (4th Cir.
1993) (same).

11 U.S.C. § 1327(a) states the general rule that
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“[t]he provisions of a confirmed plan bind the debtor and each
creditor, whether or not the claim of such creditor is provided
for by the plan, and whether or not such creditor has objected
to,

has

accepted,

or

has

rejected

the

plan.”

It

is

this

provision that gives plan confirmation the res judicata effect
of a final judgment.
Beard,

112

B.R.

Linkous, 990 F.2d at 162; see also In re

951,

954

(Bankr.

N.D.

Ind.

1990)

(“The

Bankruptcy Code gives confirmation a binding effect, through 11
U.S.C. § 1327.”).
The

second

res

judicata

requirement

is

also

satisfied

because both the Plaintiffs and the Defendants in this action
were

parties

to

the

earlier

Chapter

13

plan

confirmation

proceedings.

Self-evidently, each Plaintiff participated in the

confirmation

proceedings

for

his

own

bankruptcy

plan.

See

Varat, 81 F.3d at 1316 n.6 (“A party for the purposes of former
adjudication

includes

one

confirmation

who

proceeding.”).

participates

Here,

the

in

a

...

plan

Defendants

were

also

parties to these proceedings because of their financial interest
in the amount allotted to satisfy unsecured claims.

See Grausz,

321 F.3d at 473 (“In the bankruptcy context a party in interest
is

one

who

has

a

pecuniary

interest

in

the

distribution

of

assets to creditors.”).

See also In re Snow, 270 B.R. 38, 40

(D.

that

Md.

2001)

(holding

both

7

debtor

and

creditor

were

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parties

to

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Chapter

13

Pg: 8 of 16

plan

confirmation

for

res

judicata

purposes).
The third res judicata condition requires that Plaintiffs’
claims be “based upon the same cause of action involved in” the
plan

confirmation

proceedings.

Varat,

81

F.3d

at

1315.

Although we have said that “no simple test exists to determine
whether claims are based on the same cause of action for claim
preclusion purposes,” Grausz, 321 F.3d at 473 (quoting Pittston
Co.

v.

United

States,

199

F.3d

694,

704

(4th

Cir.

1999)),

generally, “claims are part of the same cause of action when
they

arise

out

of

the

same

transaction

or

series

of

transactions, or the same core of operative facts,” id. at 473
(quoting Varat, 81 F.3d at 1316).
Applying these principles, it is clear that the Plaintiffs’
current claims are based upon the same cause of action as the
Defendants’ claims in the confirmed bankruptcy plans.

To prove

his unjust enrichment claim, Covert would have to show that the
Defendants had accepted and retained a benefit under inequitable
circumstances, see Hill v. Cross Country Settlements, LLC, 936
A.2d 343, 351 (Md. 2007), because the claim on which he had paid
the

Defendants

was

procedurally

invalid.

Similarly,

to

establish their claims for reimbursement and injunctive relief,
Covert and the other Plaintiffs would have to show that they
made

payments

on

claims

that

are
8

invalid

because

they

were

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illegally filed.

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Finally, to succeed on their statutory claims

for damages under the FDCPA, MCDCA, and MCPA, the Plaintiffs
would need to show that these statutes prohibited the Defendants
from filing the proofs of claim.

A finding for the Plaintiffs

on any of these claims, therefore, would entail a holding that
the

Defendants’

directly

proofs

contradict

the

of

claim

bankruptcy

are

invalid,

court’s

which

plan

would

confirmation

order approving those proofs of claim as legitimate.
We

have

held,

in

fact,

that

even

claims

that

do

not

directly contradict confirmed orders, but merely “assert rights
that

are

inconsistent

with”

those

orders,

satisfy the third res judicata requirement.
1317.

are

sufficient

to

Varat, 81 F.3d at

See also Grausz, 321 F.3d at 475 (debtor’s malpractice

action was precluded by bankruptcy court’s prior order which had
allowed firm’s fees because a successful “malpractice action at
this stage could impair rights accorded the ... firm in the
final

fee

circuits

order”)
share

confirmed,

its

(internal

this

view

terms

are

citation

that
not

“once
subject

omitted).
a
to

Our

bankruptcy
collateral

sister

plan

is

attack”

through suits that raise claims inconsistent with the confirmed
plan.

Adair v. Sherman, 230 F.3d 890, 894 (7th Cir. 2000)

(dismissing

post-confirmation

FDCPA

action

creditor had inflated the amount of its claim).

alleging

that

See also, e.g.,

In re Szostek, 886 F.2d 1405, 1413 (3d Cir. 1989) (creditor
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could

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not

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challenge

amount

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of

claim

in

confirmed

plan,

even

though a hearing to consider a Truth in Lending Act challenge to
that

claim

confirmed).

amount
In

had

sum,

been

scheduled

because

all

of

before
the

the

plan

Plaintiffs’

was

claims

implicitly ask the district court to reconsider the provisions
of the confirmed plans, they are based on the same cause of
action as the plan confirmation orders.

Accordingly, all three

requirements are satisfied and the Plaintiffs’ claims are barred
by res judicata.

III.
Res judicata bars not only those claims that were actually
raised during prior litigation, but also those claims that could
have been raised, and the Plaintiffs in this case did indeed
have the opportunity to raise their statutory claims for relief
under the FDCPA, the MCDCA, and the MCPA during the bankruptcy
proceedings.

The Plaintiffs, as debtors in their own bankruptcy

proceedings, could have objected to LVNV’s proofs of claim at
the time they were filed on the basis that they violated these
consumer protection statutes.

See 11 U.S.C. § 502(a)-(b)(1) (if

a party in interest objects to a proof of claim, the bankruptcy
court will hold a hearing and will determine whether the claim
is

“unenforceable

against

the

debtor

...

under

any

...

applicable law”); see also Sampson v. Chase Home Finance, 667 F.
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Supp.

2d

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692,

protection

696-67

challenges

Pg: 11 of 16

(S.D.W.V.
to

2009)

allowed

(plaintiffs’

claim

were

consumer

barred

by

res

judicata after plan was confirmed because the challenges could
have

been

raised

during

the

bankruptcy

proceedings).

The

Plaintiffs could also have brought their affirmative claims for
damages

during

the

bankruptcy

process

under

Federal

Rule

of

Bankruptcy Procedure 7001(1), which provides that “a proceeding
to recover money or property” may be brought as an adversary
action.

But the Plaintiffs were not free to raise statutory

objections after the court had entered its confirmation order
when those objections were known or should have been known to
them during the bankruptcy proceedings.

See Varat, 81 F.3d at

1317.

See also U.S. Dept. of Air Force v. Carolina Parachute

Corp.,

907

F.2d

1469,

1473

(4th

Cir.

1990)

(government,

as

creditor, could not bring post-confirmation statutory challenge
to plan’s assignment of government’s contract with debtor, even
though the government had already begun court proceedings to
terminate the contract); Grausz, 321 F.3d at 474 (res judicata
barred debtor’s malpractice claim after fee order because “by
the

time

the

bankruptcy

court

entered

the

final

fee

order,

[debtor] knew or should have known there was a real likelihood
that he had a malpractice claim against the firm.”).
Here,

Plaintiffs

do

not

assert

that

any

information

necessary to make out their statutory claims was unavailable to
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them

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at

the

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time

their

plans

Pg: 12 of 16

were

confirmed.

Accordingly,

Plaintiffs should have raised these statutory claims during the
plan confirmation hearings, and their failure to do so means
that these claims are barred by res judicata. 3

See Varat, 81

F.3d at 1317 (“When all of the requirements for claim preclusion
are

satisfied,

the

judgment

in

the

first

case

acts

as

an

absolute bar to the subsequent action with regard to every claim
which was actually made ... and those which might have been
presented.”).
One of the core purposes of bankruptcy is to collect all of
“the

debtor’s

creditors.”

assets

for

equitable

distribution

amongst

Kuehner v. Irving Trust Co., 299 U.S. 445, 452

3

We note that the Plaintiffs failed to raise a claim for
equitable relief under 11 U.S.C. § 502(j), which states that
“[a] claim that has been allowed ... may be reconsidered for
cause,” until oral argument in this case. We thus consider this
argument waived.
See Equal Rights Center v. Niles Bolton
Assocs., 602 F.3d 597, 604 n.4 (4th Cir. 2010) (arguments not
raised in appellant’s opening brief are deemed waived). We also
note, however, that the burden of establishing cause for
reconsideration under 502(j) rests with the moving party, In re
Starlight Group, LLC, 515 B.R. 290, 293 (Bankr.E.D.Va. 2014),
and “the clearest cause for reconsideration is the discovery,
subsequent to allowance, of new relevant facts or evidence that
could not have been discovered at an earlier stage, or the
discovery of clear error in the order of allowance,” In re Gold
& Silversmiths, Inc., 170 B.R. 538, 545 (Bankr. W.D.N.Y. 1994)
(quoting Collier on Bankruptcy 14th Ed., ¶ 57.23(3)). Here, the
Plaintiffs freely admit that no new relevant facts have come to
light since their plans were confirmed, and they allege no clear
error in the confirmation order.
As a result, they would be
unable
to
meet
their
burden
of
establishing
cause
for
reconsideration under § 502(j).

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(1937).

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Were we to hold that proofs of claim are subject to

post-confirmation
purpose

Pg: 13 of 16

by

challenge,

creating

an

we

would

incentive

risk

for

undermining

debtors

themselves at the expense of their creditors.

to

this

enrich

Debtors would be

motivated to refrain from pursuing claims for monetary damages
until

after

additional

a

plan

has

post-plan

been

assets

distribution in bankruptcy.

confirmed

that

in

would

order

not

be

to

obtain

subject

to

The only recourse for creditors in

this situation would be to petition the court to revoke the
discharge order based on a showing of fraud under 11 U.S.C. §
727(d).

In the majority of cases, however, it is unlikely that

a showing of fraud could be made, leaving the creditors without
a remedy and frustrating bankruptcy’s goal of collecting and
equitably distributing all of a debtor’s assets.
Moreover,

allowing

these

kinds

of

post-confirmation

collateral attacks on a bankruptcy plan’s terms would “destroy
the

finality

provide.”

that

bankruptcy

confirmation

Adair, 230 F.3d at 895.

is

intended

to

See also Grausz, 321 F.3d at

475 (allowing debtor’s malpractice action after confirmation of
final

attorneys’

purpose

of

the

fees

order

doctrine

of

would
res

“undermine
judicata:

a

fundamental

...

encouraging

reliance on adjudication”) (internal citation omitted).
allowing

the

kinds

of

post-confirmation

13

actions

that

Thus,
the

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Plaintiffs bring in this case would frustrate two fundamental
aims of the bankruptcy process.

IV.
In deciding that these statutory claims were not barred by
res judicata, the district court relied on our opinion in CenPen Corp. v. Hanson, 58 F.3d 89 (4th Cir. 1995).

In Cen-Pen, we

held that a creditor may challenge a plan’s treatment of his
secured claim as unsecured even after the plan is confirmed,
because “Bankruptcy Rule 7001(2) expressly requires initiation
of an adversary proceeding to determine the validity, priority
or extent of a lien.”

Id. at 93 (emphasis in original).

We

then

an

an

held

that

“[i]f

issue

must

be

raised

through

adversary proceeding it is not part of the confirmation process
and, unless it is actually litigated, confirmation will not have
a preclusive effect.”
Although

there

Id.
is

no

lien

at

issue

in

this

case,

the

district court nevertheless read Cen-Pen to create a blanket
rule that plan confirmation does not have preclusive effect as
to any issue that must have been decided through an adversary
process.
the

Covert, 2013 WL 6490318 at *5.

Plaintiffs'

statutory

claims

for

It then concluded that
damages

were

claims

to

“recover money or property,” and were thus not precluded because

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Federal

Rule

Filed: 03/03/2015

of

Bankruptcy

Pg: 15 of 16

Procedure

7001(1)

claims to be raised in adversary proceedings.
This reading of Cen-Pen is too broad.
with

the

status

of

secured

claims

requires

such

Id.

First, Cen-Pen dealt

following

a

bankruptcy

proceeding, noting “the general rule that liens pass through
bankruptcy unaffected.”

Id. at 92.

We noted that this rule has

statutory support in 11 U.S.C. § 506(d)(2), which states that
liens are not voided “due only to the failure of any entity to
file a proof of such claim.”

Cen-Pen, 58 F.3d at 93.

Here, by

contrast, Plaintiffs challenge the legality of the process used
to collect an unsecured claim.

There is no analogous rule or

statute establishing that claims challenging the filing process
pass through bankruptcy unaffected, nor any rule that unsecured
claims pass through bankruptcy unaffected.
is true.

Indeed, the opposite

See 11 U.S.C. § 1327(c) (stating the general rule that

“[e]xcept as otherwise provided in the plan or in the order
confirming

the

plan,

the

property

[that

a

confirmed

plan

distributes] is free and clear of any claim or interest of any
creditor provided for by the plan.”).
Second, our reasoning in Cen-Pen was motivated by the need
to

protect

the

rights

of

parties

in

interest

who

are

not

directly involved in a bankruptcy proceeding.

In Cen-Pen, the

party

of

seeking

post-confirmation

reinstatement

its

secured

lien apparently did not participate in the debtors’ bankruptcy
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proceedings at all, and its liens were “nowhere mentioned or
otherwise acknowledged” in the debtors’ proposed plans.
Pen, 58 F.3d at 94.

Cen-

Under such circumstances, we found that a

creditor’s lien could not be avoided simply because a plan had
been

confirmed

because

“[w]here

[an

adversary

proceeding]

is

required to resolve the disputed rights of third parties, the
potential

defendant

the

right

third

parties

93

the

are

(internal

proper

Any such concerns over the notice necessary before
of

at

that

omitted).

rights

Id.

expect

will

the

followed.”

to

procedures

altering

be

has

citation

inapplicable

here,

where the Plaintiffs seeking relief from the confirmation orders
are the debtors themselves, and they clearly suffered from no
lack of notice of the claims against them.
The Cen-Pen exception simply does not apply in this case.
The Plaintiffs’ statutory claims are therefore subject to the
normal principles of res judicata, and are thus precluded by the
confirmation of the Chapter 13 plans.

V.
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED

16