Garske v. Arcadia Financial, Ltd. (In Re Garske)

287 B.R. 537, 2003 Cal. Daily Op. Serv. 122, 2003 Daily Journal DAR 123, 2002 Bankr. LEXIS 1492, 40 Bankr. Ct. Dec. (CRR) 175, 2002 WL 31922081
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedDecember 20, 2002
DocketBAP No. NC-02-1223-RyKMa, No. NC-02-1237-RyKMa, Bankruptcy No. 98-13427, Adversary No. 00-1139
StatusPublished
Cited by23 cases

This text of 287 B.R. 537 (Garske v. Arcadia Financial, Ltd. (In Re Garske)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garske v. Arcadia Financial, Ltd. (In Re Garske), 287 B.R. 537, 2003 Cal. Daily Op. Serv. 122, 2003 Daily Journal DAR 123, 2002 Bankr. LEXIS 1492, 40 Bankr. Ct. Dec. (CRR) 175, 2002 WL 31922081 (bap9 2002).

Opinions

OPINION

RYAN, Bankruptcy Judge.

After Veda Garske (“Debtor”) filed a chapter 71 bankruptcy petition,’ she obtained a discharge (the “Discharge”). Debtor then filed a class action complaint (the “Complaint”) against Arcadia Financial, Ltd. (“Arcadia”) under § 524(a)(2).

Debtor also filed a motion for class certification (the “Certification Motion”) and a motion (the “Motion”) for summary judgment against Arcadia. In response, Arcadia filed a cross motion (the “Cross Motion”) for summary judgment.

After a hearing, the bankruptcy court granted the Cross Motion (the “Order”). Later, the bankruptcy court certified the class (the “Certification Order”). Debtor timely appealed the Order, and Arcadia timely cross-appealed the Certification Order.

We AFFIRM.

I. FACTS

In 1995, Debtor purchased a 1988 Ford Tempo (the “Vehicle”) on credit. Olympica Financial provided Debtor with the financing for the Vehicle. Under the terms of the financing agreement (the “Contract”), Debtor was obligated to make 48 monthly payments of $154.74 to Olympica Financial. The Contract was later assigned to Arcadia.

[539]*539In 1998, Debtor filed her chapter 7. Debtor listed Arcadia on her schedules as secured, with a balance owing on the Vehicle of approximately $2,700. While Debtor filed a statement of intention to exempt and redeem2 the Vehicle pursuant to § 722, she did not exempt or redeem the Vehicle. Debtor, however, understood that she had to continue to make payments to Arcadia in order to keep the Vehicle.

Upon learning of Debtor’s bankruptcy, Arcadia ceased all collection efforts during the pendency of the bankruptcy.

After the Discharge, Debtor retained the Vehicle without either reaffirming the debt to Arcadia or redeeming the Vehicle. Arcadia transferred Debtor’s account to its retained collections unit (the “Unit”).3 Arcadia instructed the Unit collectors to contact its customers post-discharge to determine if they intended to retain possession of the vehicle and continue making voluntary payments.4 If the customer decided to retain the vehicle, the collectors requested that voluntary payments be made.

Arcadia’s corporate philosophy is to “keep as many of [the discharged chapter 7 customers] in their vehicles as long as they make contractual payments in exchange for the ability to retain possession of their vehicles.” Arcadia’s Memorandum of Points and Authorities in Opposition to Debtor’s Motion for Summary Judgment (Jan. 18, 2002), at 3. Nevertheless, Arcadia advised its customers that it had the right to repossess a vehicle if voluntary payments ceased.5 Arcadia applied its policy nationally to all chapter 7 discharged customers.

From February 1999 to February 2000, Debtor was usually two to three months delinquent on her account. Arcadia contacted Debtor to determine her intention to retain the Vehicle and make payments. The contacts were limited to written and phone communications.

The parties disagreed on the aggressiveness of Arcadia’s collection tactics. According to Debtor, Arcadia called her on 36 occasions between February 1999 and February 2000. Debtor indicated that Arcadia “demand[ed] payment, threaten[ed] repossessions and generally harassed] [her]” on each of those phone conversations. Garske’s Memorandum of Law in Support of Motion for Summary Judgment and Contempt (Jan. 3, 2002), at 4. Arcadia vigorously objected to Debtor’s accusations. According to Arcadia, it contacted Debtor on 14 occasions, two of which were at Debtor’s request. Of the 14 phone calls, Arcadia indicated that it spoke to Debtor on only four occasions. The remaining calls were either answered by another person or Arcadia simply left phone messages. Arcadia also admitted calling Debtor at work on several occasions.6

[540]*540Undisputedly, Arcadia made no threats to Debtor other than to assert its right to repossess the Vehicle if payments were not timely made. Further, Arcadia never threatened to sue Debtor personally. During this period, Debtor paid over $1,400 to Arcadia. Frustrated with Arcadia’s contacts, Debtor demanded that Arcadia stop calling her. In return, Arcadia told Debtor that “as long as [Debtor] has [its] car, [Arcadia] ha[s] the right to call her regarding her voluntary payments if she is past due.” Deposition of Kelly Hall (Sept. 28, 2001), at 244. Arcadia eventually wrote off Debtor’s account in April 2000.

Later, Debtor filed the Complaint under § 524(a)(2). In bringing a class action against Arcadia, Debtor alleged that Arcadia’s collection efforts after the Discharge violated the discharge injunction. Debtor sought injunctive and declaratory relief under § 524(a)(2), along with compensatory and punitive damages.

In its answer, Arcadia denied engaging in any improper collection practices, maintained that the class action was improper and additionally denied the existence of the class.

Subsequently, Debtor filed the Certification Motion. Debtor argued that the proposed class met the requirements under FRCP 23(a) and sought certification under FRCP 23(b)(2) or (b)(3). In opposition, Arcadia argued that both the intra-jurisdictional and inter-jurisdictional conflicts of law produced “non-common” issues. According to Arcadia, non-common issues predominated because each plaintiff in the class experienced different “solicitation” activity. Arcadia further objected to the class under FRCP 23(b)(2) because Debtor primarily sought monetary rather than injunctive relief.

The bankruptcy court rejected Arcadia’s arguments and certified the class. First, the bankruptcy court found commonality as “the issue of whether or not [Arcadia’s] conduct violate[d] the debtor’s discharge injunction, is exactly the same ...” Memorandum on Class Certification (Feb. 14, 2002), at 2. Also, the bankruptcy court found that the primary relief in Debtor’s case was injunctive and declaratory. According to the bankruptcy court, “[a]side from attorney’s fees, individual damages will be either nominal or non-existent.” Id.

The bankruptcy court certified the class under FRCP 23(b)(2), noting that it consisted of

all debtors who obtained a discharge, retained [Arcadia’s] collateral without reaffirmation, became delinquent, and were threatened with repossession by [Arcadia] if they did not bring their payments current. The class will not include debtors in cases where the court issued an order specifying [Arcadia’s] rights or there is an agreement between the debtor and [Arcadia] outlining said rights.

Memorandum on Class Certification (Feb. 14, 2002), at 2.

Meanwhile, Debtor filed the Motion, arguing that telephone calls by secured creditors to debtors post-discharge are per se violations of § 524(a)(2). In addition, Debtor sought an order holding that Arcadia was in contempt of the discharge injunction and ordering a refund of all payments made to Arcadia.

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Bluebook (online)
287 B.R. 537, 2003 Cal. Daily Op. Serv. 122, 2003 Daily Journal DAR 123, 2002 Bankr. LEXIS 1492, 40 Bankr. Ct. Dec. (CRR) 175, 2002 WL 31922081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garske-v-arcadia-financial-ltd-in-re-garske-bap9-2002.