Carole M. Rein Paul M. Driscoll William F. Croce Tina W. Croce and Paul Frenette v. Providian Financial Corporation

270 F.3d 895, 2001 Daily Journal DAR 11855, 2001 Cal. Daily Op. Serv. 9459, 2001 U.S. App. LEXIS 23842, 2001 WL 1352303
Court of Appeals for the Ninth Circuit·Decided November 5, 2001·No. 99-16346·Published·Cited by 93 cases

Opinion

ORDER AND AMENDED OPINION

KELLEHER, District Judge:

ORDER

Appellee’s petition for rehearing filed on June 25, 2001, is hereby granted without further oral argument. Judge O’Scannlain and Judge Fletcher have voted to deny Appellee’s petition for rehearing en banc. Judge Kelleher so recommends. The amended opinion is filed herewith.

OPINION

We have before us the question of whether the district court erred in dismissing appellant-debtors’ complaint under Federal Rule of Civil Procedure 12(b)(6) on the basis that reaffirmation and settlement agreements entered into by appellant-debtors during prior bankruptcy proceedings bar their later action against the same creditor for alleged violations of the automatic stay and discharge provisions of the U.S. Bankruptcy Code. We have jurisdiction pursuant to 28 U.S.C. § 1291.

I.

Appellants Carol M. Rein, Paul M. Dris-coll, William F. Croce and Tina W. Croce, and Paul Frenette (“Rein,” “Driscoll,” “Croces,” and “Frenette,” respectively, and “Appellants,” collectively) were debtors in unrelated Chapter 7 bankruptcy proceedings who owed Providian Financial Corporation (“Providian”) various amounts in credit card debts (“Providian Debt”). After Appellants filed for bankruptcy, 1 *898 Providian mailed letters to each of Appellants’ attorneys, asserting its belief that portions of Appellants’ respective credit card debts were nondischargeable because they were incurred through fraud. Each Appellant was requested to enter into an agreement reaffirming the amount at issue.

Rein, Driscoll, and Croces refused to enter into reaffirmation agreements, and Providian instituted adversary proceedings against them in their respective bankruptcy actions. Represented by counsel, Rein, Driscoll, and Croces ultimately negotiated settlements with Providian, wherein they stipulated that the Providian Debt was nondischargeable and agreed to pay some or all of the amounts at issue.

Frenette, also represented by counsel, signed a reaffirmation agreement on May 19, 1997. The reaffirmation agreement was filed with the bankruptcy court. Pro-vidian asserts that a discharge exempting the Providian Debt was subsequently granted on June 19, 1997. 2 On March 24, 1998, the bankruptcy court discharged the trustee and closed the bankruptcy case.

On October 21, 1998, Appellants filed a class action lawsuit against Providian in the United States District Court for the Northern District of California, alleging that Providian’s distribution of reaffirmation letters and institution of adversary proceedings constituted violations of the automatic stay and discharge provisions of the Bankruptcy Code (11 U.S.C. §§ 362 and 524(a)(2), respectively). The district court dismissed the complaint with prejudice on the basis of preclusion and lack of standing.

II.

We first address the district court’s ruling that Appellants lacked standing to bring their claims. In then-complaint, Appellants sought to enjoin Providian from engaging in alleged violation of the stay and discharge provisions. However, as the district court pointed out, the automatic stay had terminated and Providian had completed its collection efforts by the time Appellants filed suit in district court, rendering their claims for injunctive relief moot. Nonetheless, Appellants have standing. Appellants also sought monetary damages against Providian, and even such a generalized claim for monetary damages is sufficient to maintain justiciability. Shadduck v. Rodolakis, 221 B.R. 573, 579 (Bankr.D.Mass.1998) (holding that the plaintiff had standing even though automatic stay had terminated and his claims for declaratory and injunctive relief were moot, because he also sought actual damages for violation of the automatic stay). Hence, the district court erred in dismissing Appellants’ claims for lack of standing.

III.

Appellants argue that the district court erred in holding that their claims were barred by the doctrines of res judicata and collateral attack. Because the analysis differs with respect to Frenette, we accord his claims separate treatment.

A.

Res judicata, or claim preclusion, provides that a final judgment on the merits of an action precludes the parties from relitigating all issues connected with the action that were or could have been raised *899 in that action. See In re Baker, 74 F.3d 906, 910 (9th Cir.1996). Claim preclusion is appropriate where: (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) there was a final judgment on the merits; and (4) the same claim or cause of action was involved in both suits. Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.2001); Siegel v. Federal Home Loan Mortgage Corp., 143 F.3d 525, 528-29 (9th Cir.1998).

The first two res judicata factors are satisfied as to Frenette. First, the parties are identical. A reaffirmation agreement was entered into by and between Providian and Frenette. Frenette subsequently brought his § 362 and § 524(a)(2) claims against Providian in district court. Second, there is no dispute that the bankruptcy court was a court of competent jurisdiction.

However, the third factor for res judica-ta is not satisfied: there has been no final judgment on the merits. The reaffirmation agreement signed by Frenette and filed with the bankruptcy court is unaccompanied by any court order approving the agreement, excepting the Providian Debt from discharge, or otherwise declaring the Providian Debt nondischargeable. Indeed, the record is silent as to the disposition of the Providian Debt, as the discharge order itself is not part of the record. 3

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Carole M. Rein Paul M. Driscoll William F. Croce Tina W. Croce and Paul Frenette v. Providian Financial Corporation, 270 F.3d 895, 2001 Daily Journal DAR 11855, 2001 Cal. Daily Op. Serv. 9459, 2001 U.S. App. LEXIS 23842, 2001 WL 1352303 (9th Cir. 2001).

270 F.3d 895 (Carole M. Rein Paul M. Driscoll William F. Croce Tina W. Croce and Paul Frenette v. Providian Financial Corporation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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