Drummond v. LVNV Funding LLC
MEMORANDUM OPINION and ORDER granting the motion to withdraw the reference. Signed by Judge L Scott Coogler on 12/31/2014. (KAM, )
2014 Dec-31 PM 03:36
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NETTIE S DRUMMOND,
LVNV FUNDING, LLC,
MEMORANDUM OF OPINION AND ORDER
Before the Court is a Motion to Withdraw Reference (Doc. 1) filed by
Defendant LVNV Funding, LLC (“LVNV”) on October 24, 2014. For the reasons
discussed below, the motion will be GRANTED.
Plaintiff Nettie Drummond (“Drummond”) filed for Chapter 13 Bankruptcy
with the Bankruptcy Court for the Northern District of Alabama on June 13, 2014.
LVNV filed a proof of claim in that case on July 3, 2014, asserting a debt of $886.98.
Drummond then initiated an adversary proceeding against LVNV in the bankruptcy
court on September 15, 2014, alleging that LVNV violated the Fair Debt Collection
Practices Act (“FDCPA”) by filing a proof of claim on a debt that was unenforceable
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because it was barred by the applicable statute of limitations. LVNV then moved to
withdraw the reference from the bankruptcy court pursuant to 28 U.S.C. § 157(d).
District courts possess “original and exclusive jurisdiction of all cases under title
11.” 28 U.S.C. § 1334(a). However, district courts can provide that cases that arise
under title 11, arise in title 11, or relate to a case under title 11 may be referred to the
bankruptcy court of that district. 28 U.S.C. § 157(a). This court has entered a general
order of reference automatically referring all such cases to the bankruptcy judges for
this district. US v. ILCO, Inc., 48 B.R. 1016, 1020 (N.D. Ala. 1985).
However, 28 U.S.C. § 157(d) provides for the withdrawal of the reference under
certain circumstances. Withdrawal may be either mandatory or permissive. A district
court is required to withdraw the reference “if the court determines that resolution
of the proceeding requires consideration of both title 11 and other laws of the United
States regulating organizations or activities affecting interstate commerce.” 28 U.S.C.
157(d). Some courts, citing the plain language of the statute, have determined that
withdrawal is mandatory if resolution of the dispute requires any consideration of a
non-title 11 federal law. See, e.g., In re Kiefer, 276 B.R. 196, 199 (E.D. Mich. 2002). The
majority of courts to consider the issue have found that “withdrawal is mandatory only
if the court can make an affirmative determination that resolution of the claims will
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require substantial and material consideration of those non-Code statutes which have
more than a de minimis impact on interstate commerce.” In re Price, No. 2:06mc3317MHT, 2007 WL 2332536, at *2 (M.D. Ala. Aug. 13, 2007) (quoting In re TPI Intern.
Airways, 222 B.R. 663, 667 (S.D.Ga. 1998) (internal quotations omitted); see also
Abrahams v. Phil-Con Services, LLC, No. 10-0326-WS-N, 2010 WL 4875581 (S.D. Ala.
Nov. 23, 2010). For withdrawal to be warranted, the issue must “require more than
the mere application of well-settled or ‘hornbook’ non-bankruptcy law; significant
interpretation of the non-Code statute must be required.” Abrahams, 2010 WL
4875581, at *2 (quoting Matter of Vicars Ins. Agency, Inc., 96 F.3d 949, 953 (7th Cir.
1996)). This court will, along with the other district courts in this circuit, follow the
It is beyond dispute that the FDCPA is a non-title 11 federal law impacting
interstate commerce. See 15 U.S.C. § 1692a(6) (the use of an “instrumentality of
interstate commerce” is required to be a “debt collector” under the FDCPA.)
Therefore, whether withdrawal is required turns on whether substantial and material
consideration of the FDCPA is necessary to resolve the dispute.
Drummond argues that Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th
Cir. 2014) means that the court’s inquiry will not require substantial and material
consideration of the FDCPA because the decisive issue has already been decided.
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(Doc. 1-4 at 4.) In Crawford the Eleventh Circuit held that the filing of a proof of claim
to collect a stale debt in a Chapter 13 bankruptcy violates the FDCPA. Id. at 1256-57.
LVNV was sued in that case for filing a proof of claim for a time-barred debt, the same
conduct that is at issue in this case. LVNV moved to dismiss the action in Crawford,
arguing that the FDCPA did not apply to its conduct. The bankruptcy and district
courts agreed with LVNV, but the Eleventh Circuit reversed and remanded, holding
that the “FDCPA’s broad language, our precedent, and the record compel the
conclusion that defendants’ conduct violated a number of the Act’s protective
provisions.” Id. at 1257.
LVNV raises two arguments as to why substantial and material consideration
of the FDCPA is still required in this case despite Crawford. First, they argue that
Crawford concerned the sufficiency of the pleadings under a Fed. R. Civ. P. 12(b)(6)
motion, rather than the ultimate merits of the case, and that the Eleventh Circuit
remanded the case to the district court for further proceedings rather than ruling on
the merits. (Doc. 1-5 at 4.) Therefore, they argue that Crawford cannot be relied upon
for this Court’s withdrawal analysis.
However, the Eleventh Circuit expressly held in Crawford that the filing of a
proof of claim to collect a stale debt in a Chapter 13 bankruptcy proceeding violates the
FDCPA. Crawford, 758 F.3d at 1257. A court may properly resolve questions of law
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when ruling upon a 12(b)(6) motion. See Neitzke v. Williams, 490 U.S. 319, 328 (1989).
While factual issues remained in Crawford which lead to a remand of the action for
further proceedings in the district court rather than remand for an entry of judgment,
this does not in any way negate the Eleventh Circuit’s resolution of the underlying
legal issues. Therefore, LVNV’s argument based upon the procedural posture of
Crawford is not persuasive.
LVNV’s second argument concerns the issue of whether the Bankruptcy Code
preempts the FDCPA when creditors misbehave in the bankruptcy context. (Doc. 1-5
at 4.) The Eleventh Circuit expressly declined to rule on that question in Crawford, 758
F.3d at 1262 n.7, and there is currently a circuit split upon this issue. Compare Simmons
v. Roundup Funding, LLC, 622 F.3d 93 (2d Cir. 2010); Walls v. Wells Fargo Bank, N.A.,
276 F.3d 502 (9th Cir. 2002) (finding that FDCPA claims were precluded by the
Bankruptcy Code), with Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir. 2004); Simon v.
FIA Card Services, N.A., 732 F.3d 259 (3d Cir. 2013) (finding FDCPA claims not
precluded). Lower courts within the Eleventh Circuit are similarly split. Compare In
re Pariseau, 395 B.R. 492 (M.D. Fla. 2008) (FDCPA claims precluded), with Rios v.
Bakalar & Assocs., 795 F. Supp. 2d 1368 (S.D. Fla. 2011); Bacelli v. MFP, Inc., 729 F.
Supp. 2d 1328 (M.D. Fla. 2010) (finding no preclusion). The issue of preclusion will
require the court to decide on a circuit split which the Eleventh Circuit has declined
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to rule on, and which splits lower courts within this circuit. Therefore, substantial and
material consideration of the FDCPA will be required in order to resolve Drummond’s
claims, and therefore mandatory withdrawal of the reference is necessary.
For the reasons stated above, LVNV’s motion to withdraw the reference is
GRANTED, and the case is hereby WITHDRAWN from the Bankruptcy Court for
the Northern District of Alabama. The clerk is directed to assign this case as a civil
Done this 31st day of December 2014.
L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
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