Harrelson v. Spray (In re Harrelson)

537 B.R. 16
CourtUnited States Bankruptcy Court, M.D. Alabama
DecidedSeptember 2, 2015
DocketCase No. 14-80169-WRS; Adv. Pro. No. 14-8012-WRS
StatusPublished
Cited by11 cases

This text of 537 B.R. 16 (Harrelson v. Spray (In re Harrelson)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrelson v. Spray (In re Harrelson), 537 B.R. 16 (Ala. 2015).

Opinion

MEMORANDUM OPINION

WILLIAM R. SAWYER, United States Bankruptcy Judge

This adversary proceeding is before the Court on the Motion to Compel Arbitration and Stay Proceedings filed by Defendants Vann Spray and DSSC, Inc. (collectively, “Defendants”). (Doc. 52). Plaintiff Marie Sue Harrelson has filed claims against the Defendants alleging turnover of estate funds, avoidance of fraudulent conveyances, and violations of restrictions on debt relief agencies. (Doc. 30). For the reasons set forth below, the Defendants’ motion is GRANTED in part and DENIED in part.

[19]*19I. FACTS & PROCEDURAL HISTORY

The following facts are taken from the amended complaint and the exhibits attached to the motion to compel arbitration. At this procedural posture, the Court assumes all facts pled in the amended complaint are true.

A. The Parties

Defendant Vann A. Spray (“Spray”) is a former Birmingham attorney who advertised debt settlement services under the moniker “Law Offices of Vann A. Spray.”1 Defendant DSSC, Inc. (“DSSC”) is a California entity who provided support to Spray’s law firm, but was not licensed to do business in Alabama. Spray used DSSC’s California address and contact information for his debt settlement services, although Spray was not licensed to practice law in California. In essence, DSSC provided the purported debt settlement services, and Spray acted as DSSC’s “front” in Alabama.

Plaintiff Marie Sue Harrelson (“Harrel-son”) owed four credit card debts totaling $19,633. She contacted the Law Offices of Vann A. Spray, and the Defendants sent a “field agent” to meet her at her house. Harrelson never went to Spray’s law office or met with Spray. Harrelson entered a Limited Engagement Agreement (“Agreement”) with Spray on February 1, 2013. (Doc. 52, Ex. A).

B. The Agreement

The Agreement, which is 17 pages long,2 provided that Harrelson would make 36 monthly payments of $381.15 directly to the Defendants instead of to her creditors. The Defendants would subtract numerous up-front fees and put the balance in a savings account. Once sufficient savings had accumulated, the Defendants promised to contact Harrelson’s creditors and offer to settle the debt for roughly 60% of what Harrelson owed.

The fees the Defendants charged Har-relson for their services under the Agreement were as follows:

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(Doc. 52, Ex. A).3 Also, because these fees were mostly front-loaded, Harrelson’s ac[20]*20cumulation of savings to settle her debts would start very slowly. All of Harrel-son’s first monthly payment would be applied to pay the Defendants’ fees. The application of Harrelson’s monthly payments after that would be as follows:

Payments 2-4: $314.77 to fees (83%), $66.38 to settlement savings (17%)
Payments 5-7: $295.72 to fees (78%), $85.43 to settlement savings (22%)
Payments 8-18: $253.85 to fees (67%), $127.30 to settlement savings (33%)
Payments 19-36: $58.85 to fees (15%), $322.30 to settlement savings (85%)

(Doc. 52, Ex. A). Thus, under the Agreement, the vast majority of Harrelson’s payments for the first 18 months would be pocketed by the Defendants — long before they would provide any actual debt settlement services to Harrelson.

Pursuant to the Agreement, Harrelson also granted Spray a power of attorney and provided her bank account number to the Defendants to allow them to debit the monthly payments.4 The monthly debits of $881.15 began in March 2013. Harrel-son ceased payment of her credit cards.

C. Bankruptcy and Adversary Proceeding

Capital One, one of Harrelson’s creditors, sued Harrelson in Alabama state court in November 2013. Harrelson’s debt to Capital One was one of the debts she planned to settle through the Agreement. Harrelson contacted the number, which was purportedly Spray’s, that was listed in the Agreement and forwarded information concerning the lawsuit to the Defendants. Capital One obtained a default judgment against Harrelson in December 2013. The Defendants told Harrelson that they negotiated a settlement with another of her creditors, but in fact did not. Harrelson cancelled the Agreement in January 2014, having made ten monthly payments to the Defendants totaling $3,811.50. The Defendants refunded $143.00 to Harrelson, and retained the remaining $3,668.50 as nonrefundable fees.5

Harrelson filed Chapter 13 bankruptcy on February 13, 2014. (Case No. 14-80169). Proofs of claim for all of the debts Harrelson hired the Defendants to settle were filed in her case. (Case No. 14-80169, Claims 3, 5, 6, and 10). Harrelson' initiated this adversary proceeding against the Defendants on July 16, 2014.6 (Doc. [21]*211). The Court stayed proceedings while the Defendants moved the district court to withdraw the reference; that motion has since been denied. (Doc. 46).

In her amended complaint, Harrelson asserts., three counts: turnover of property of the estate under 11 U.S.C. § 542, avoidance of fraudulent conveyances under 11 U.S.C. § 548, and violations of restrictions on debt relief agencies under 11 U.S.C. §§ 526-528. (Doc. 30). She seeks to certify a nationwide class for the debt relief agency count. The Defendants have moved to compel arbitration of these counts pursuant to an arbitration clause contained in the Agreement. (Doc. 52). The arbitration clause is as follows:

In the event of any controversy,.claim or dispute between the parties arising out of or relating to this agreement or the breach, termination, enforcement, interpretation, unconscionability or validity thereof, including the termination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the county which the consumer resides, or the closest metropolitan county in accordance with the Laws of the State of AL for agreements to be made in and to be performed in AL. The' parties agree, the arbitration shall be administered by the American Arbitration Association (“AAA”) pursuant to its rules and procedures and an arbitrator shall be selected by the AAA. The arbitrator shall be neutral and independent and shall comply with the AAA code of ethics. The award rendered by the arbitrator shall be final and shall not be subject .to vacation or modification. Judgment on the award made by the arbitrator may be entered in any court having jurisdiction over the parties. If either party fails to comply with the arbitrator’s award, the injured party may petition the circuit court for enforcement. The parties agree that either party may bring claims against the other only in his/her or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, the parties agree that the arbitrator may not consolidate proceedings of more than one person’s claims, and may not otherwise preside over any form of representative or class proceeding.

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Cite This Page — Counsel Stack

Bluebook (online)
537 B.R. 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrelson-v-spray-in-re-harrelson-almb-2015.