Adams v. First Franklin Fin. Corp. (In re Adams)
Adams v. First Franklin Fin. Corp. (In re Adams)
Opinion of the Court
This matter comes before the Court on the Motion of the Debtor for Contempt ("the Motion") (Dkt. No. 11). In the Motion, the Debtor contends First Franklin Financial Corp. ("First Franklin") violated the automatic stay by retaining a payment the Debtor made voluntarily on a pre-petition debt and by crediting that payment to its pre-petition claim against the Debtor. The Debtor seeks an order directing the respondent to immediately return the check
The Court held a hearing on the Motion on August 22, 2018. Both the Debtor and First Franklin appeared at the hearing with counsel. After the parties' presentation of facts and legal arguments, the Court took the matter under advisement. The issue before the Court is whether a creditor violates the automatic stay by retaining and applying funds received after the petition date on account of a pre-petition debt when the Debtor voluntarily provided those funds and the funds are not a part of the bankruptcy estate. Having carefully considered the relevant statutes and the sparse case-law on this issue, the Court, for the reasons set forth below, finds First Franklin's retention and application of the payment does not violate the automatic stay.
JURISDICTION AND VENUE
The Court has jurisdiction to hear this matter pursuant to
STATEMENT OF FACTS
At the hearing on the Motion, the Parties stipulated the material facts in this dispute. Those facts, as well as others of which the Court took judicial notice, are the following: Sometime prior to filing this case, the Debtor and First Franklin entered into an agreement where First Franklin loaned the Debtor a sum of money and obtained a non-purchase-money security *213interest in some of the Debtor's personal property. The Debtor filed the petition for relief under Chapter 7 of the Bankruptcy Code on July 18, 2018. (Dkt. No. 1). The Debtor's attorney filed a Motion to Avoid First Franklin's security interest pursuant to
Without consulting his bankruptcy attorney, the Debtor obtained a loan from Kinetic Credit Union ("Kinetic") on July 19, 2018. The Debtor gave the proceeds of this loan, $7,561.01, to First Franklin, intending for First Franklin to apply the funds to the Debtor's pre-petition account. Both parties agree that First Franklin did not request that the Debtor make this payment and neither party introduced evidence indicating that First Franklin facilitated or encouraged the transaction. Rather, Debtor's counsel indicated that the Debtor made the payment on the "advice" of a personal acquaintance who did not have a relationship with First Franklin or Kinetic.
When Debtor's counsel learned that the Debtor made this payment, he attempted to unwind the transaction by requesting First Franklin to remit the funds back to Kinetic. After numerous phone and email conversations, First Franklin refused. The Debtor accordingly filed the Motion.
LEGAL ANALYSIS
As the parties stipulated the material facts of this matter, the issue before the Court is solely one of interpreting the law. As previously stated, the question before the Court is whether a creditor violates
Upon filing a petition under the Bankruptcy Code,
Of particular relevance to the issue before the Court, the automatic stay prevents "any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title[.]"
The practical implications of the Debtor's argument, however, convince this Court that the Debtor's interpretation of the law is incorrect. The Debtor argues that, although the Code might allow a creditor to accept a voluntary payment, the creditor must hold the funds and allow a debtor to recover them on request. The Court sees a large problem with the practicalities of this interpretation: it would be unclear at what point a creditor could permissibly apply the funds to its claim. Like the automatic stay, the discharge injunction prohibits "any act, to collect or recover" from the debtor on account of a dischargeable debt.
At least two cases have held that a creditor's application of payments to a pre-petition claim can be the sole basis for finding a violation of the automatic stay. The unique fact patterns in those cases, which are distinct from this case, seemingly called those courts to consider the policies underlying the automatic stay as expressed in the Williford case supra . Those policy considerations are not present in this case. For that reason, the Court is unpersuaded that these cases should change the outcome here.
The holding in Krivohlavek v. Boys Town Fed. Credit Union,
The second case involves a creditor's use of bankruptcy estate assets. In Gordon v. Taylor , the Chapter 7 Trustee sought damages for acts by the debtor and a mortgage creditor for violating the automatic stay.
The Debtor's payment in this case was neither property of the estate nor a deduction according to a pre-petition debt servicing agreement. The Debtor made the payment voluntarily with his own funds. Therefore, the rulings in the Taylor and Krivohlavek cases are not applicable and the Court sees no reason to stray from the interpretation of the Code explained above.
Finally, the Debtor presented a second argument for why First Franklin's actions violated the automatic stay. He argues that, to accept his post-petition payment on a pre-petition account, First Franklin was required to give the disclosures listed in § 524(k). In making this argument the Debtor cites Gibbons v. First Citizens Nat'l Bank and Americorp Fin. LLC v. Schwarz . Respectively , 16-11243, 2016 Bankr. LEXIS 4269 (Bankr. W.D. Tenn. Dec. 13, 2016) & 09-100206-8-SWH, 2016 Banrk. LEXIS 4432 (Bankr. E.D.N.C. Dec. 22, 2016). Without giving these disclosures, the Debtor argues Frist Franklin violated the automatic stay. The Court is likewise unpersuaded by this argument.
An agreement between a debtor and a holder of a claim regarding "a debt *216that is dischargeable in a case under this title" must provide the disclosures enumerated in § 524(k). See
CONCLUSION
First Franklin's retention and application of funds voluntarily paid by the Debtor did not violate the automatic stay. Finding the creditor's actions did would unreasonably limit Code sections allowing a debtor to voluntarily repay a debt with non-bankruptcy estate funds. Further, there are no important policy implications that would direct this Court to consider the application of these funds a violation of the automatic stay. Accordingly, the Court will enter a consistent order denying the Debtor's Motion for Contempt.
Pursuant to Fed. Rule of Bank. Proc. 7001, an action to recover property must be filed as an adversary proceeding. Because ultimately the Court does not find First Franklin violated the stay or impermissibly retained property of the estate, the Court does not need to address this procedural deficiency.
On the August 22, 2018 hearing date, the Court was to also hear the dispute regarding the avoidability of First Franklin's security interest. The parties agreed, however, that the Court should rule on the Motion before addressing the lien avoidance issue, as the Court's ruling in favor of Frist Franklin would moot the Debtor's lien avoidance motion.
Importantly, as the funds obtained from Kinetic were acquired after filing the petition, the funds are not property of the estate. See
The subsection states "[n]othing contained in [§§ 524(c), 524(d) (which provide the requirements for an enforceable reaffirmation agreement) ] prevents a debtor from voluntarily repaying any debt."
Reference
- Full Case Name
- IN RE: Eddie Robert ADAMS, Debtor. Eddie Robert Adams, Movant v. First Franklin Financial Corp.
- Status
- Published