Sciortino v. Gwinnett County Department of Water Resources (In re Sciortino)

561 B.R. 569, 2016 Bankr. LEXIS 4428
United States Bankruptcy Court, N.D. Georgia·Decided December 19, 2016·No. CASE NO. 14-71765-BEM; Adversary Proceeding No. 15-5356-BEM·Published·Cited by 6 cases

Opinion

MEMORANDUM OPINION

Barbara Ellis-Monro, U.S. Bankruptcy Court Judge

This matter comes before the Court on Plaintiffs Amended Complaint in which Plaintiff alleges, among other things1, that [572] Gwinnett County Department of Water Resources (the “Department”) and Gwin-nett County (the “County” and with the Department, “Defendants”) willfully violated the automatic stay of 11 U.S.C. § 362(a) thereby entitling him to an award of damages under 11 U.S.C. § 362(k). A trial in this adversary proceeding was held November 30,2016 (the “Trial”).

Prior to Trial, the Court entered several orders2 including an Order Denying Motion For Summary Judgment and Notice Of Trial (the “Summary Judgment Order”) which limited the issues to be tried as follows: (i) whether the account statement issued November 5, 2014 (the “Final Statement”) constitutes an attempt to collect a debt, and if it does (ii) whether Plaintiffs receipt of the Final Statement injured Plaintiff. [Doc. 116]. After carefully considering the pleadings, the testimonial and documentary evidence admitted and the applicable authorities, the Court concludes, as explained in this memorandum opinion, that the three documents Defendant Department of Water Resources sent to Plaintiff, which included the Final Statement, did not amount to an attempt to collect a debt and the Department did not willfully violate the automatic stay. The Court concludes further that the evidence does not support a finding that the County had any involvement in the matters at issue in this proceeding and it will be dismissed as a party defendant.

I. Jurisdiction

Bankruptcy courts are courts of limited jurisdiction whose jurisdiction is “derivative of and dependent upon” the three categories of proceedings set forth in 28 U.S.C. § 1334(b). See In re Toledo, 170 F.3d 1340, 1344 (11th Cir. 1999). Thus, bankruptcy courts are permitted to hear only matters: (1) arising under title 11, (2) arising in a case under title 11, and (3) related to a case under title 11. Id.; 28 U.S.C. § 157(a). Matters arising under title 11 involve “matters invoking a substantive right created by the Bankruptcy Code while matters arising in a case under title 11 are generally administrative-type matters that could arise only in bankruptcy.” Toledo, 170 F.3d at 1344. The automatic stay is a substantive right created by the Bankruptcy Code and a determination whether the stay was willfully violated un[573] der 11 U.S.C. § 362(k) constitutes a core proceeding in which this Court has the authority to enter a final judgment.

II. Facts

Ms. Carol Buck (“Buck”) is the manager of the customer care department for the Department. The customer care department is charged with insuring that customer billing is timely and accurate and that customer calls and walk up inquiries are answered in a timely manner. Buck testified that the Department provides service to 244,000 customers, that she is familiar with Plaintiffs accounts with the Department and that Plaintiff has been involved in a dispute with the Department related to disconnection of service.

Buck testified that when the Department is notified of a bankruptcy filing, the existing account is closed and a new account is opened with the pre-filing account balance being held in suspense until the bankruptcy case is either discharged or dismissed. If a case is dismissed the pre-filing balance would then be put under the new post filing account. Buck testified further that if a customer has filed bankruptcy multiple times it can be confusing and laborious because there are multiple dates to track and correlate with the multiple accounts. Upon receiving notice of a bankruptcy filing, the Department always closes the existing account and sends the customer a package comprised of the final statement for the pre-filing account, the Department’s bankruptcy guidelines and an explanatory letter.

When Plaintiff filed his current case3, case number 14-71765 on November 3, 2014, Plaintiff called and emailed the Department on the morning of November 4, 2014 to advise the Department of the filing and request that his water service, which had previously been turned off due to nonpayment, be restored. The Department restored service at 1:48 p.m. the following day, November 5, 2014. Plaintiff testified that he was happy to have his water service restored at that time.

In accordance with its policy, the Department closed Plaintiffs pre-filing account. In addition, the Department mailed Plaintiff a final statement for that account, account number 5094 (the “Final Statement”), the Department’s bankruptcy guidelines (the “Guidelines”) and a letter regarding the closure of the existing account, account number 5094 and the opening of a new post-petition account (the “Letter” and with the Final Statement and the Guidelines, the “Bankruptcy Package”). Buck testified that all customers who file bankruptcy receive these three documents and that no one has ever complained that they were confused by the documents nor has anyone tried to pay a pre-petition balance. Buck testified further that no payment on the prepetition account would be accepted until discharge or dismissal and if someone tried to pay the amount owed on the pre-petition account the payment would be applied to the post-petition account.

The Final Statement is divided into two parts, the top part of the page includes a Customer Information section that identifies the account number, the billing period, the payments posted through date of 11/05/2014, the service location and the water usage and an Account Transactions section that identifies the Previous Bal-[574] anee, Payments/Adjustments, Deposit Credit, Balance Forwarded (due now), Current Charges, a Current Due Before 12/01/2014 of $10.18 and a TOTAL DUE (emphasis in the original) of $2,946.60, a SPECIAL MESSAGE section which states FINAL INVOICE, BALANCE DUE. The bottom portion of the Final Statement is a payment coupon which instructs that the portion below the perforation should be RETURN[ED] WITH PAYMENT, provides a PAYMENT DUE 12/01/2014, PAY THIS AMOUNT 2,946.60 and Make checks payable to Gwinnett County Department of Water Resources. [Plaintiff Ex. J; Defendants Ex. 9],

The Guidelines4 are contained on one page entitled Residential Bankruptcy Account Guidelines and provide as follows:

Customers seeking Bankruptcy Protection must provide:
1) Complete copy of the petition
2) Copies of amendments
3) Complete copy of the Dismissal or Discharge

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

Sciortino v. Gwinnett County Department of Water Resources (In re Sciortino), 561 B.R. 569, 2016 Bankr. LEXIS 4428 (Ga. 2016).

561 B.R. 569 (Sciortino v. Gwinnett County Department of Water Resources (In re Sciortino)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related