In re Maloy

176 B.R. 292, 1994 Bankr. LEXIS 2031, 1994 WL 728840
CourtDistrict Court, D. Georgia
DecidedDecember 15, 1994
DocketBankruptcy No. 92-31220
StatusPublished

This text of 176 B.R. 292 (In re Maloy) is published on Counsel Stack Legal Research, covering District Court, D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Maloy, 176 B.R. 292, 1994 Bankr. LEXIS 2031, 1994 WL 728840 (gad 1994).

Opinion

MEMORANDUM OPINION

JAMES D. WALKER, Jr., Bankruptcy Judge.

On October 31,1994, a hearing was held to consider Mark E. Maloy’s (“Debtor”) Motion to Reopen this Case. For the reasons stated hereafter, Debtor’s motion will be denied. These findings of fact and conclusions of law are published in accordance with Fed. R.Bankr.P. 7052.

FINDINGS OF FACT

Debtor’s Motion to Reopen was opposed by Arthur L. Phillips, an attorney at law in his behalf. The facts of this case are quite unusual. Debtor filed this Chapter 13 case on November 17, 1992. On March 12, 1993, the case was converted to Chapter 7. A discharge was entered in the Chapter 7 case on July 27, 1993. The Final Decree in the ease was entered on September 13, 1993.

On November 12, 1992, approximately five days before this case was filed, a letter was sent to Debtor by Mr. Phillips demanding payment of a debt in behalf of his client, Trust Company Bank, and advising Debtor of the provisions of O.C.G.A. § 13-1-11 regarding attorney’s fees pursuant to the note. Debtor alleges that the letter failed to contain provisions which are required by the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). The letter was received by Debtor following the filing of the Chapter 13 case. No other correspondence was addressed to Debtor by Mr. Phillips.

Debtor now asserts a claim against Mr. Phillips under FDCPA. Such claim was never disclosed as an asset in the Schedules in the Chapter 13 case. Further, the claim was never disclosed in the Schedules which were required to be filed following the conversion of the case from Chapter 13 to Chapter 7. Debtor’s attorney showed that he was aware of the claim as early as December, 1992. On January 13, 1993, Debtor’s attorney wrote to Mr. Phillips and demanded a settlement of this claim. The bankruptcy case was pending for about nine months following that letter with no amendment by Debtor disclosing the existence of the asset or setting the asset aside as exempt. Debtor’s attorney characterized this omission as an error on his part.

Debtor offered as evidence a copy of an amendment to Schedule “C” which pm-ported to set aside the cause of action as exempt property. The date of the preparation of the document was unknown. It was established that the document was prepared prior to the closing of the ease. The document was never filed. Further, there was never any document prepared or filed which amended Schedule “B” so as to disclose the existence of .this asset.

The Schedules listed a liability of Debtor to Trust Company Bank in the amount of Two Thousand Three Hundred Thirty-three Dollars and Sixty-eight Cents ($2,333.68). The Schedules indicate that the debt was secured by a 1987 Honda Civic valued at Three Thousand Five Hundred Fifty-five Dollars ($3,555.00). The Statement of Affairs in question 4 indicated that Trust Company Bank of Middle Georgia had repos[294]*294sessed Debtor’s 1987 Honda Civic on November 10, 1992. Debtor’s Schedule “C” listed various items of property to be set aside as exempt. Debtor’s exemption entitlement was not exhausted by the Schedule C claim. Debtor’s Plan proposed to pay Trust Company Bank at the rate of Two Hundred Twenty Dollars ($220.00) per month with interest at Twelve (12) Percent. The Plan provided further that the 1987 Honda Civic would be returned to Debtor by Trust Company Bank.

Upon conversion to Chapter 7, the Clerk’s office requested that Debtor file a Statement of Intentions. No other schedules were requested by the Clerk’s office. Other than the Statement of Intentions filed in response to the Clerk’s request, there were no other schedules filed by Debtor following conversion to Chapter 7. The Chapter 13 Trustee’s final report was filed on May 26, 1993, indicating that there was no payment to any creditor from funds received by the Trustee. The report showed that a total of Six Hundred Dollars ($600.00) was paid to the Chapter 13 Trustee by Debtor. After payment of administrative fees of Sixty-six Dollars ($66.00), a balance of Five Hundred Thirty-four Dollars ($534.00) was refunded by the Chapter 13 Trustee to Debtor.

On November 15, 1993, about two months after this bankruptcy case was closed, Debt- or filed a FDCPA action against Mr. Phillips in the United States District Court for the Middle District of Georgia, Athens Division, Civil Action File No. l:90-CV-1255ODV. None of the pleadings from the District Court case were presented by either party at the hearing. It was established by stipulation from the parties that during the pen-dency of the District Court case the Defendant, Mr. Phillips, had made a judicial estop-pel argument. He contended that Debtor was judicially estopped from asserting the claim because of his failure to list the claim in the schedules of his bankruptcy ease. The District Court, however, concluded that the claim was barred by the statute of limitations. Debtor has appealed the District Court’s dismissal to the Eleventh Circuit Court of Appeals. That appeal is still pending.

Debtor now seeks to reopen the bankruptcy case to administer this FDCPA claim as an asset. Debtor contends that the District Court FDCPA case will be reversed on appeal. Debtor also contends that there is still another claim which can be asserted against Mr. Phillips under the state law Uniform Deceptive Trade Practices Act O.C.G.A. § 10-1-370 et. seq. (“UDTPA”). The details of that claim were not specified in the evidence except that Debtor contended that a violation of FDCPA would also be a violation of UDTPA.

At the hearing reference was made to a collection letter from another lawyer which allegedly violated FDCPA. That letter was not introduced into evidence. It was conceded that the statute of limitations would ban any claim under FDCPA for the second letter. It was asserted that there could be a UDTPA claim arising out of the second letter on the same basis as the claim proposed against Mr. Phillips.

The allegations as to both claims were speculative. As to the second letter, the claim required the assumption that the letter which appeared to have been signed by a lawyer was not actually signed by a lawyer and did not actually represent the exercise of independent judgment in behalf of the lawyer. Debtor contended that the letter was issued routinely by a collection agency in the name of the lawyer. Debtor’s evidence as to this claim was based entirely on assumptions. Those assumptions, while they may eventually be proven to be correct, may also be proven to be incorrect. Without any evidence with which to test the assumptions, the Court can form no conclusion as to the validity of the additional claim.

CONCLUSIONS OF LAW

Debtor’s motion to reopen this case is brought pursuant to section 350(b) of the Bankruptcy Code. That section provides that “A case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b) (Law.Coop.1994).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
176 B.R. 292, 1994 Bankr. LEXIS 2031, 1994 WL 728840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-maloy-gad-1994.