In re Banks

549 B.R. 257, 2016 Bankr. LEXIS 607, 2016 WL 1242195
CourtUnited States Bankruptcy Court, D. Oregon
DecidedFebruary 26, 2016
DocketBankruptcy Case No. 14-35264-rld13
StatusPublished

This text of 549 B.R. 257 (In re Banks) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Banks, 549 B.R. 257, 2016 Bankr. LEXIS 607, 2016 WL 1242195 (Or. 2016).

Opinion

[259]*259MEMORANDUM OPINION

RANDALL L. DUNN, U.S. Bankruptcy Judge

On January 25, 2016, I heard argument (“Hearing”) on the joint motions of Ad Astra Recovery Services, Inc. (“Ad Astra”) and Rapid Cash Payday Loans (“Rapid Cash”) to compel arbitration and stay proceedings and for a protective order (collectively, “Arbitration Motions”), opposed (“Opposition”) by the Debtor (“Ms. Banks”). (Ad Astra and Rapid Cash are referred to collectively as “Respondents.”) Following argument, I gave the parties until February 2,2016, to file supplemental memoranda as to the impact of the recent District Court opinion in Campos v. Bluestem Brands, Inc., 2016 WL 297429 (D.Or. Jan. 22, 2016) (hereinafter, the “Campos decision”). Both sides availed themselves of the opportunity, and I took the matter under advisement on February 3, 2016,

I have reviewed my notes from the Hearing and relevant documents from the main case docket relating to this contested matter, including Ms. Banks’ motion for an order to show cause for contempt against the Respondents (“Contempt Motion”), the response (“Response”) filed by the Respondents,. the Arbitration Motions, the Opposition, Respondents’ reply (“Reply”) to the Opposition, and the Respondents’ and Ms. Banks’ supplemental briefs re the Campos decision. See Federal Rule of Evidence 201; In re Butts, 350 B.R. 12, 14 n. 1 (Bankr.E.D.Pa.2006). In addition, I have reviewed relevant legal authorities, both as cited to me by the parties and as located through my own research.

Based on that review, this Memorandum Opinion states the court’s findings of fact and conclusions of law under Civil Rule 52(a), applicable with respect to this contested matter under Rules -7052 and 9014.1

I. FACTUAL BACKGROUND

The facts material to resolution of the Arbitration Motions are limited and essentially undisputed.

Ms. Banks filed her chapter 13 petition on September 16, 2014. She filed her proposed chapter 13 plan (“Plan”) the following day. In her schedules, Ms. Banks listed both Ad Astra and Rapid Cash as general unsecured creditors on Schedule F, and they received notice of her bankruptcy filing. The Plan was confirmed by order entered on December 4, 2014. Copies of the confirmation order weré sent to Ad Astra and Rapid Cash on December 6, 2014. The Plan estimated a 0% recovery for general unsecured creditors. Pursuant to § 1327(b), when the Plan was confirmed, all property of Ms. Banks’ bankruptcy estate revested in her individually, and the estate terminated.

On September 17, 2015, Ms. Banks filed the Contempt Motion. In the Contempt Motion, Ms. Banks alleged as to Rapid Cash:

At the time that Debtor’s Chapter 13 bankruptcy plan was confirmed Rapid Cash was reporting the pre-petition debt on Debtor’s credit report. At some time after Debtor filed for Chapter 13 bankruptcy protection Rapid Cash disregarded Debtor’s automatic stay and either sent Debtor’s pre-petition debt to collections or sold Debtor’s pre-petition debt to Ad Astra.

Memorandum in Support of Debtor’s Motion for Order of Contempt, at 2. As to Ad [260]*260Astra, Ms. Banks alleged that Ad Astra sent Ms. Banks a single collection notice (“Collection Notice”) on August 17, 2015, seeking collection of a prepetition debt in the amount of $40,317.00. Id, at 3. On September. 18, 2015, the court issued an Order to Show Cause, scheduling a preliminary hearing on the Contempt Motion for October 28, 2015, at 9:00 AM by telephone.

In the Response, Rapid Cash admitted that Ms. Banks’ account was placed with Ad Astra for collection but asserted that such placement occurred prepetition rather than postpetition. Rapid Cash further asserted that it did not send any correspondence or otherwise communicate with Ms. Banks after her bankruptcy filing. Ad Astra admitted that the Collection Notice was sent but asserted that its sending of the Collection Notice was the result of “human error.”

The debtor’s file was then scrubbed again and, within a matter of days, moved back into proper bankruptcy status. No other collection attempts were made.

Response, at 3 (emphasis in original). At the Order to Show Cause hearing, Judge Brown reassigned the case to me, and the parties were informed that a further hearing would be scheduled the following January.

On December 10, 2015, the Arbitration Motions were filed. In the Arbitration Motions, the Respondents moved to compel arbitration of the Contempt Motion pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 2-4. In support, the Respondents relied on the Payday Loan Agreement & Disclosure Statement (“Agreement”) signed by Ms. Banks on August 6, 2013, in advance of her bankruptcy filing. The Agreement included the following relevant provisions with respect to arbitration of disputes between the parties, among other provisions:

The Pre-Dispute Resolution Procedure, Arbitration Provision and Jury Trial Waiver set forth below govern “Claims” you assert against us or any “related party” of ours and “Claims” we or any related party assert against you.
For purposes of this Agreement, our “related parties’ include all parent companies, subsidiaries and affiliates of ours (including Ad Astra Recovery Services, Inc.), and our and their employees, directors, officers, shareholders, governors, managers and members.
The term “Claim” means any claim, dispute or controversy between you and us (or our related parties) that arises from or relates in any way to this Agreement or any services you request or we provide under this Agreement (“Services”); any of our marketing, advertising, solicitations and conduct relating to your request for Services; our collection of any amounts you owe; or our disclosure of or failure to protect any information about you. “Claim” is to be given the broadest possible meaning and includes claims of every kind and nature, including but not limited to, initial claims, counterclaims, cross-claims and third-party claims, and claims based on any constitution, statute, regulation, ordinance, common law rule (including rules relating to contracts, negligence, fraud or other intentional wrongs) and equity. It includes disputes that seek relief of any type, including damages and/or in-junctive, declaratory or other equitable relief. .... However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
2. Arbitration Election. ... If a lawsuit is filed, the Defending Party may elect to demand arbitration under this Arbi[261]*261tration Provision of some or all of the Claims asserted in the lawsuit. To avoid piece meal Proceedings to the extent possible, the Complaining Party must assert in a single lawsuit or arbitration all of the Claims of which the Complaining Party is aware and the Defending Party must demand arbitration with respect to all or none of the Complaining Party’s Claims.
3. Non-Waiver. Even if all parties have elected to litigate a Claim in court, ...

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Bluebook (online)
549 B.R. 257, 2016 Bankr. LEXIS 607, 2016 WL 1242195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-banks-orb-2016.