Shelton v. Wilson (In re Wilson)

311 B.R. 566, 2004 U.S. Dist. LEXIS 11951
CourtDistrict Court, D. Oregon
DecidedJune 22, 2004
DocketNo. CIV. 04-6128-AA
StatusPublished
Cited by3 cases

This text of 311 B.R. 566 (Shelton v. Wilson (In re Wilson)) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shelton v. Wilson (In re Wilson), 311 B.R. 566, 2004 U.S. Dist. LEXIS 11951 (D. Or. 2004).

Opinion

OPINION AND ORDER

AIKEN, District Judge.

Appellant, John Shelton, pursuant to 28 U.S.C. § 158(a)(1), appeals the Amended Order and Injunction entered by the Bankruptcy Court on January 16, 2004, and the Order and Injunction entered on November 25, 2003, by the Bankruptcy Court.

FACTUAL BACKGROUND

Appellant Shelton commenced the underlying proceeding against the Appellee-Debtors in bankruptcy (“Wilson and Krysl”) seeking a determination that a debt allegedly owing by Wilson and Krysl to a third party (from whom Shelton acquired the debt) is excepted from Wilson and Krysl’s discharge, or in the alternative, that Wilson and Krysl be denied a discharge in this bankruptcy proceeding.

Wilson and Krysl moved to dismiss Shelton’s case alleging that he lacked standing. Specifically, Wilson and Krysl argued that Shelton was unlawfully conducting the business of a collection agency as defined by Oregon law. They further asserted that he was not registered as a collection agency as required by Oregon law, and therefore, barred from proceeding. Wilson and Krysl sought an injunction, as provided under Oregon law. They also sought damages, and their reasonable attorney’s fees and costs pursuant to Oregon law and 11 U.S.C. § 523(d).

On April 16, 2003, the Bankruptcy Court conducted a detailed evidentiary hearing on Wilson and Krysl’s motion to dismiss. See Hearing Transcript. The parties then submitted post-hearing memorandums further outlining their theories. The court entered a final Opinion, Order and Injunction on January 16, 2004, as amended, granting the motion to dismiss and holding that Shelton lacked standing to bring a complaint.

DISCUSSION

The Bankruptcy code directs who can bring adversary proceedings. Only a creditor can initiate a proceeding under 11 [569]*569U.S.C. § 523(a) to determine the non-dis-chargeability of a debt, and that debt must be owed to that creditor. Shelton has sought a non-dischargeability order for a debt assigned to him by ATEZ, Inc., an asbestos removal company. Shelton asserts that pursuant to 11 U.S.C. §§ 523(a)(2) and (4) that he is an assigned creditor.

Similarly, only a trustee, creditor, or the U.S. Trustee can object to a discharge under 11 U.S.C. § 727. “The trustee, a creditor, or the United States Trustee may object to the granting of a discharge under subsection (a) of this section.” 11 U.S.C. § 727(c). Shelton has objected to Wilson and Krysl’s discharge under 11 U.S.C. § 727(a) as an alleged creditor.

Under the code, Shelton must be a “creditor” or he lacks standing to pursue his claims. A creditor is an “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.” 11 U.S.C. § 101(10)(A). A claim is the “right to payment, whether or not such right is reduced to judgment.” 11 U.S.C. § 101(5)(A).

A collection agency is defined as: “any person directly or indirectly engaged in soliciting claims for collection, or collecting or attempting to collect claims owed, due or asserted to be owed or due to another person or to a public body[.]” ORS 697.005(l)(a)(A).

If a person qualifies as a collection agency, then that person must be registered with the Oregon Department of Consumer and Business Services prior to collecting any debts. See ORS 697.015. A person violating ORS 697.015 is subject to civil action, civil penalties and an injunction. ORS 697.087, 697.095.

Wilson and Krysl argue that the plain meaning of the statute requires Shelton to comply with the registration requirements under Oregon law. Shelton has solicited, and thereafter, purchased ATEZ’s claims against third parties. In the last three years, ATEZ sold a total of three claims to Shelton. In the last ten years, ATEZ sold approximately six claims to Shelton. In 2002, Shelton acquired four or five claims from parties other than ATEZ. The sales are normally evidenced by written assignments. If a collection suit is filed, Shelton usually files as an “assignee” of ATEZ. In one such case in 2002, a defendant paid ATEZ directly. Shelton therefore dismissed the case and considered the debt satisfied.

At issue today is a March 18, 2002, purchase by Shelton from ATEZ. Shelton purchased all of ATEZ’s right, title and interest in a $636.87 claim against debtor, Katherine Wilson, as evidenced by a written assignment.

Robert Kenyon, the President of ATEZ, testified at the evidentiary hearing that Shelton “probably approached me” about buying the debts. Tr. p. 12. Further, Shelton testified that his occupation is a “consultant,” specifically “chasing people who owe money — business operations.” When asked if he was referring to debts owed to other people in a system of collection, Shelton responded, “I am referring to debts that are owed to businesses, commercial debts and commercial debts only. I do not deal with consumer debt.” Tr. p. 19.

Based on this evidence, I find that Shelton is engaged in soliciting claims and therefore is required to register with the State as a collection agency. Shelton stipulated that he was not, in fact, registered as a collection agency, therefore, he is prohibited from attempting to collect on his alleged assignment until he has regis[570]*570tered with the State in compliance with the statute.

Shelton, however, asserts that he is exempt from the registration requirement by a statutory exclusion for a person providing “factoring services.” The exclusion provides:

“Collection agency” does not include:
(L) Any person while the person is providing factoring services. A person is providing factoring services for the purposes of this subparagraph if the person engages, directly or indirectly, in the business or pursuit of:
(ii) Soliciting or collecting on accounts that have been purchased from commercial clients under an agreement whether or not the agreement:
(I) Allows recourse against the commercial client;
(II) Requires the commercial client to provide any form of guarantee of payment of the purchased account; or
(III) Requires the commercial client to establish or maintain a reserve account in any form.

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Related

Girouard v. Cestaro (In re Cestaro)
598 B.R. 520 (D. Connecticut, 2019)
Shelton v. Wilson
185 Fed. Appx. 696 (Ninth Circuit, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
311 B.R. 566, 2004 U.S. Dist. LEXIS 11951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelton-v-wilson-in-re-wilson-ord-2004.