UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Amanda Marie Nelson,                    Case No. 23-cv-2222              

          Plaintiff,                                                     

v.                                          ORDER                        

St. Catherine University, and Quigley Law                                
Firm, PLLC,                                                              

          Defendants.                                                    


Carter B. Lyons and Thomas J. Lyons, Jr., Consumer Justice Center P.A., 367 Commerce 
Court, Vadnais Heights, MN 55127, for the Plaintiff.                     

John C. Gunderson, Donohue McKenney, LTD, 11222 86th Avenue N, Maple Grove, 
MN 55369, and Thomas B. Wieser, Meier, Kennedy & Quinn, Chartered, 445 Minnesota 
Street, Suite 2200, St. Paul, MN 55101, for Defendant St. Catherine University. 

Kiralyn Locke and Patrick D. Newman, Bassford Remele PA, 100 South 5th Street, Suite 
1500, Minneapolis, MN 55402, for Defendant Quigley Law Firm, PLLC.       


SUSAN RICHARD NELSON, United States District Judge                        
    This matter is before the Court on Defendant Quigley Law Firm, PLLC (“QLF”)’s 
Motion  to  Dismiss  [Doc.  No.  28],  and  on  Defendant  St.  Catherine  University  (“the 
University”)’s  Motion  to  Dismiss  [Doc.  No.  32].  Based  on  a  review  of  the  files, 
submissions, and proceedings herein, and for the reasons below, the Court denies both 
motions.                                                                  
I.   BACKGROUND                                                           
    A.   Factual Allegations                                             
    At the motion to dismiss stage, the Court accepts the factual allegations in the 
complaint as true and draws all reasonable inferences in the nonmovant’s favor. Cook v. 

George’s, Inc., 

 (8th Cir. 2020). The Court “generally must ignore 
materials outside the pleadings, but it may consider some materials that are part of the 
public record or do not contradict the complaint, as well as materials that are necessarily 
embraced by the pleadings.” Glow in One Mini Golf, LLC v. Walz, 

 
(8th Cir. 2022). Relevant to the issues before the Court, Ms. Nelson makes the following 

factual allegations.                                                      
    The Defendants initiated a collection action against Ms. Nelson for a debt incurred 
while she was a student at the University, and filed the action in Dakota County District 
Court in October 2017. (Am. Compl. [Doc. No. 26] ¶¶ 7–9.)                 
    On May 12, 2023, Ms. Nelson commenced a Chapter 7 bankruptcy case. (Id. ¶ 11.) 

The  United  States  Bankruptcy  Court,  District  of  Minnesota,  mailed  a  notice  to  the 
University of the bankruptcy action via first class mail on May 17, 2023. (Id. ¶ 12.) 
    On or about May 16, 2023, in response to Ms. Nelson’s failure to appear or complete 
a financial disclosure form in the open collection action, the Dakota County District Court 
issued a bench warrant for her arrest. (Id. ¶ 17.) The Defendants did nothing to dismiss or 

stay the collection action, to quash the pending bench warrant, or to alert the issuing court 
that Ms. Nelson had filed for bankruptcy. (Id. ¶¶ 19–20.) Ms. Nelson was arrested on the 
warrant, booked, and fingerprinted on May 31, 2023. (Id. ¶ 21.)           
    The conditions of the warrant were that Ms. Nelson should be released upon either 
(1) posting a cash bail, or (2) completing a financial disclosure form pursuant to a demand 

for disclosure that had been issued on January 12, 2023 in the collection action. (Id. ¶ 18.) 
After Ms. Nelson was booked at the Dakota County Jail, the arresting officer informed her 
that she would not have to stay the night if she completed the financial disclosure form. 
(Id. ¶ 30.) Ms. Nelson completed the form and was released at 1:30 a.m. on June 1, 2023, 
approximately three hours after her arrest. (Id. ¶¶ 28–32.)               
    Ms. Nelson added Defendant QLF to the bankruptcy matter on June 8, 2023. (Id. 

¶ 35.) On June 23, 2023, her bankruptcy counsel sent an email to the Defendants providing 
more information on the bankruptcy matter. (Id. ¶ 37.)                    
    The  Dakota  County  Sheriff  sent  an  executed  financial  disclosure  form  to  the 
Defendants on June 2, 2023. (Id. ¶ 34.) On June 14, 2023, the Dakota County District Court 
issued a Notice of Remote Zoom hearing set for July 17, 2023 in the collection matter, 

requiring attendance by all parties. (Id. ¶ 36.) On July 12, 2023, QLF notified the district 
court that its attorney had a scheduling conflict and would not be able to attend the hearing. 
(Id. ¶ 40.) The July 12, 2023 communication was sent directly to Ms. Nelson, without 
copying her counsel. (Id. ¶ 42.)                                          
    The Defendants did not at any point inform the district court of Ms. Nelson’s 

bankruptcy matter, or take any action to dismiss, suspend, or stay the collection action. (Id. 
¶ 46.) Ms. Nelson hired counsel to appear at the remote hearing set in the collection action 
on July 17, 2023. (Id. ¶ 48.) At that hearing, her counsel notified the court of the pending 
bankruptcy  case.  (Id.)  The  district  court  immediately  stayed  the  collection  action 
proceedings. (Id. ¶ 49.)                                                  

    The delay in staying the collection action resulted in Ms. Nelson incurring over 
$1,000 in legal fees and costs. (Id.) She further alleges that she suffered emotional distress, 
fear, anxiety, and loss of sleep due to the Defendants’ continued efforts to collect on her 
debt. (Id. ¶ 50.)                                                         
    B.   The Present Lawsuit                                             
    Ms. Nelson initiated these proceedings by filing a Complaint on July 26, 2023. 

(Compl. [Doc. No. 1].) She amended her Complaint on September 9, 2023. (Am. Compl.) 
In her Amended Complaint, she alleges three counts. Count 1 alleges violations of the 
automatic stay provision of the United States Bankruptcy Code, 

, against 
both Defendants. (Id. ¶¶ 51–57.) Count 2 alleges violations of the Fair Debt Collection 
Practices Act (“FDCPA”), 

, et seq., against QLF. (Id. ¶¶ 58–61.) Count 3 

alleges the common law tort of Intrusion Upon Seclusion against both Defendants (Id. 
¶¶ 62–66.)                                                                
    The Defendants filed their respective motions to dismiss the Amended Complaint 
on October 13, 2023 [Doc. Nos. 28, 32]. Both Defendants argue that the Court lacks subject 
matter jurisdiction to consider Ms. Nelson’s claim under Count 1, and that it should be 

dismissed without prejudice, or alternatively referred to the United States Bankruptcy 
Court. QLF argues further that Ms. Nelson’s FDCPA claim under Count 2 is precluded by 
the Bankruptcy Code to the extent that it is predicated on the alleged automatic stay 
violation. Both Defendants request that, should the Court dismiss the first two counts, it 
decline to exercise supplemental jurisdiction over the state law tort claim under Count 3. 

    The parties argued the motions before the Court on December 20, 2023. (See Minute 
Entry [Doc. No. 49].) Following the hearing, the Court requested supplemental briefing 
from QLF and Ms. Nelson. In its supplemental briefing, QLF argues that, to the extent Ms. 
Nelson’s FDCPA claim relies on alleged improper communications, the Court should 
dismiss her claim because she fails to adequately plead that any communication occurred 
or that QLF had notice of her legal representation.                       

II.  DISCUSSION                                                           
    A.   Legal Standards                                                 
    The Defendants move the Court to dismiss Ms. Nelson’s Amended Complaint 
pursuant to Federal Rules of Civil Procedure, Rule 12(b)(1) for lack of subject matter 
jurisdiction, and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. 
         1.   Challenge to Subject Matter Jurisdiction                   

    Federal district courts have subject matter jurisdiction over civil actions that involve 
a federal question or diversity of citizenship. See 28 U.S.C. §§ 1331–32. Federal question 
jurisdiction exists when the action arises “under the Constitution, laws, or treaties of the 
United States.” Id. §1331.                                                
    In deciding a motion under Rule 12(b)(1), the Court must first distinguish between 
a facial attack and a factual attack on its subject matter jurisdiction. Croyle by and through 

Croyle v. United States, 

 (8th Cir. 2018) (citing Osborn v. United States, 

, 729 n.6 (8th Cir. 1990)). In a factual attack, the issue of jurisdiction is bound 
up with the merits of the case, whereas in a facial attack the issue of jurisdiction can be 
resolved on the face of the pleadings. Moss v. United States, 

 (8th Cir. 

2018).                                                                    
    Here, the Defendants raise a purely legal challenge to the Court’s subject matter 
jurisdiction, arguing that an Article III district court lacks jurisdiction to hear alleged 
violations of the United States Bankruptcy Code. The Court finds that this is a facial attack, 
capable of resolution on the face of the pleadings. Accordingly, the Court “restricts itself 
to the face of the pleadings, and the non-moving party receives the same protections as it 

would defending against a motion brought under Rule 12(b)(6).” Davis v. Anthony, Inc., 

 (8th Cir. 2018). The plaintiff has the burden of proving subject matter 
jurisdiction. Id.                                                         
         2.   Alleged Failure to State a Claim                           
    When considering a motion to dismiss for failure to state a claim under Rule 

12(b)(6), the Court accepts the facts alleged in the complaint as true and views those 
allegations in the light most favorable to the plaintiff. See Dormani v. Target Corp., 

 (8th Cir. 2020). However, the Court need not accept a plaintiff’s conclusory 
statements or legal conclusions. Retro Television Network, Inc. v. Luken Communications, 
LLC, 

, 768–69 (8th Cir. 2012). The Court ordinarily does not consider matters 

outside of the pleadings on a Rule 12(b)(6) motion, but it may consider some materials that 
are part of the public record or do not contradict the complaint, as well as materials that are 
necessarily embraced by the pleadings. Glow in One Mini Golf, 

.   
    To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual 
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 

Iqbal, 

 (2009) (quoting Bell Atl. Corp. v. Twombly, 

 
(2007)). The facts alleged must have enough specificity “to raise a right to relief above the 
speculative level.” Bell Atl. Corp., 

.                     
    B.   Facial Attack on this Court’s Subject Matter Jurisdiction       
    “[T]he district courts of the United States have ‘original and exclusive jurisdiction 
of all cases under title 11.’” Stern v. Marshall, 

 (2011) (quoting 

(a)). “District courts may refer any or all such proceedings to the bankruptcy judges 
of their districts.” Id.; also 

. This district’s local rules state that all 
“bankruptcy cases and proceedings” are referred to the bankruptcy judges. Minn. Loc. R. 
Bankr. P. 1070–1.                                                         
    The Supreme Court held in Stern that § 157, which allows district courts to enact 

rules like this district’s local rules for referring cases to bankruptcy courts, “does not have 
the hallmarks of a jurisdictional decree.” 

. Instead, § 157 “allocates the 
authority to enter final judgment between the bankruptcy court and the district court. That 
allocation does not implicate questions of subject matter jurisdiction.” Id. 
    The United States Courts of Appeals for the Third, Fourth, Seventh, and Eleventh 

Circuit have all held that district court judges have subject matter jurisdiction to entertain 
an action for a violation of an automatic stay under the Bankruptcy Code. See Potter v. 
Newkirk, 

, 698 (3d Cir. 2020); Houck v. Substitute Trustee Services, 
Inc., 

 (4th Cir. 2015); Justice Cometh, Ltd. v. Lambert, 

 (11th Cir. 2005) (per curium); Price v. Rochford, 

, 832 n.1 (7th Cir. 
1991). Additionally, this Court, and other courts within this district, have previously 

observed that district courts retain original jurisdiction over actions arising under the 
Bankruptcy Code. See Kelley v. JPMorgan Chase & Co., 

, 858–61 (D. Minn. 
2011) (Nelson, J.) (finding that a district court has discretion to withdraw any proceeding 
referred to a bankruptcy court); also Reinhardt v. Rent-A-Center West, Inc., No. 21-cv-
2158 (NEB/LIB), 

, at *2 n. 3 (D. Minn. Jan. 18, 2022); Barton v. Ocwen 
Loan Servicing LLC, No. 12-cv-162 (MJD/JJG), 

, at *9 (D. Minn. Sept. 

26, 2012) (retaining jurisdiction).                                       
    Against this authority, the Defendants rely on a 2010 decision from this district in 
which the court (Kyle, J.) concluded that the “weight of the authority” supports a finding 
that district courts have only appellate authority over actions arising under the Bankruptcy 
Code. See Carnes v. IndyMac Mortg. Servs., No. 10-cv-3005 (RHK/SRN), 

, at *3 (D. Minn. Dec. 17, 2010); also Zimmerman v. Bellows, 

 (D. Minn. 2013) (Kyle, J.) (determining that the district court lacked jurisdiction to 
hear a claim for violating the automatic stay provision based on his prior holding in 
Carnes). Judge Kyle’s analysis in Carnes relied primarily on a 2001 case from the Second 
Circuit, Eastern Equipment & Servs. Corp. v. Factory Point Nat’l Bank, Bennington, 

 (2d Cir. 2001), which held the same.                             
    The Second Circuit has recently observed that “our Eastern Equipment decision 
failed to address the contradiction between our holding and the plain language of 

(a), which provides that ‘[e]xcept as provided in subsection (b) of this section, the 
district courts shall have original and exclusive jurisdiction of all cases under title 11.’ 
Thus, our holding in Eastern Equipment has been criticized by many of our sister circuits.” 

Inn World Report, Inc. v. MB Financial Bank NA, 

, at *2 (2d Cir. 2022) 
(referring to Potter, 802 F. App’x at 699–700; Houck, 791 F.3d at 481–82; Price, 

 & n.1; and Justice Cometh, 

). The Second Circuit in Inn World 
Report acknowledged that the Supreme Court’s holding in Stern necessarily abrogates its 
ruling in Eastern Equipment, but ultimately found that it did not need to reach the issue 
because the district court in Inn World Report lacked jurisdiction on separate grounds. 

 

    The Court finds that under the plain language of 

(a) and 157, and 
the United States Supreme Court’s holding in Stern, this Court has jurisdiction to entertain 
an  action  brought  for  an  alleged  violation  of  the  Bankruptcy  Code’s  automatic  stay 
provision. The overwhelming weight of authority, both within and beyond this district, 
supports this ruling.                                                     

    C.   Allegations of Violations of the FDCPA                          
    Ms. Nelson’s FDCPA claim alleges violations of several provisions of the statute: 
15  U.S.C.  §§ 1692c  (communication  in  connection  with  debt  collection);  1692d 
(harassment or abuse); 1692e (false or misleading representations); 1692e(5) (threat to take 
action), and; 1692f (unfair practices). (See Am. Compl. ¶¶ 21, 42, 45–46.) Defendant QLF 

argues that the alleged violations of §§ 1692d, 1692e, 1692e(5), and 1692f are each 
predicated on alleged violations of the automatic stay provision of the Bankruptcy Code, 
and the Bankruptcy Code provides the exclusive remedy for such violations. QLF further 
argues that the Amended Complaint fails to allege facts sufficient to state a claim under § 
1692c. The Court considers each argument in turn.                         

         1.   FDCPA Claims Predicated on an Automatic Stay Violation     
    QLF argues that the U.S. Bankruptcy Code provides the sole remedy for violations 
of its provisions, and that the Court should accordingly dismiss Ms. Nelson’s FDCPA 
claims predicated on any such violations. QLF further argues that the Supreme Court’s 
decision in Midland Funding, LLC v. Johnson, 

 (2017), and its progeny should 
control the outcome in this case. Ms. Nelson responds that Midland Funding’s holding is 

inapplicable to the violations alleged in the Amended Complaint, and that QLF’s disregard 
for the Bankruptcy Code in the context of debt collection activities resulted in substantial 
violations of the FDCPA. The parties agree that Ms. Nelson’s FDCPA claims under 
§§ 1692d, 1692e, 1692e(5), and 1692f are predicated on her allegation that the underlying 
conduct violated the automatic stay provision of the Bankruptcy Code.     

              a.   Relevant Caselaw                                      
    The Court first considers whether Midland Funding, or any other decision by the 
U.S. Supreme Court or the Eighth Circuit Court of Appeals, resolves this issue. 
    In Midland Funding, the respondent, Johnson, had filed for personal bankruptcy in 
federal bankruptcy court, and two months later the petitioner, Midland Funding, LLC, filed 
a “proof of claim” as a part of the proceedings. 

. The proof of claim was 

considered stale, because the original charge for the debt Johnson was alleged to owe was 
well  outside of  the  relevant  statute  of  limitations.  The  bankruptcy  court  accordingly 
disallowed the claim. Johnson subsequently brought a lawsuit against Midland Funding, 
LLC, alleging that by filing a stale proof of claim, it had violated the FDCPA. The Eleventh 
Circuit held that the filing of a stale proof of claim in a bankruptcy proceeding could qualify 

as “false,” “deceptive,” “misleading,” “unconscionable,” or “unfair” conduct within the 
meaning of the FDCPA and, therefore, was an actionable claim. Johnson v. Midland 
Funding, LLC, 

 (11th Cir. 2016), rev’d and remanded, 

 
(2017), and vacated, 

 (11th Cir. 2017).                      
    The Supreme Court reversed the Eleventh Circuit, holding that the filing of a stale 
proof of claim as alleged is not actionable as an FDCPA violation. 

. 

Importantly, however, Justice Sotomayor noted in dissent that “the Court does not hold 
that the Bankruptcy Code altogether displaces the FDCPA, leaving it with no role to play 
in bankruptcy proceedings . . . Nor does the majority take a position on whether a debt 
collector violates the FDCPA by filing suit in an ordinary court to collect a debt it knows 
is time barred. Instead, the majority concludes, even assuming that such a practice would 

violate the FDCPA, a debt collector does not violate the Act by doing the same thing in 
bankruptcy proceedings.” 

 at 242–43 (Sotomayor, J. dissenting).        
    The Court finds that this matter is readily distinguishable from Midland Funding. 
Ms. Nelson alleges that QLF violated the automatic stay provision of the Bankruptcy Code 
by continuing to pursue a collection action in state civil court. (See Am. Compl. ¶¶ 19, 39.) 

Nothing in the Midland Funding opinion suggests that activity in a state court collection 
action, which violates the U.S. Bankruptcy Code’s automatic stay provision, could not 
form the basis of an FDCPA claim.                                         
    The Eighth Circuit, in an opinion cited approvingly by the Supreme Court in 
Midland Funding, has similarly observed that “[u]nlike defendants facing a collection 

lawsuit, a bankruptcy debtor is aided by trustees who owe fiduciary duties,” and that “these 
protections against harassment and deception satisfy the relevant concerns of the FDCPA.” 
Nelson v. Midland Credit Management, Inc., 

 (8th Cir. 2016); see 
Midland Funding, 

 (citing Nelson and agreeing with its holding that FDCPA 
liability does not extend to a stale proof of claim filed in a bankruptcy proceeding). Neither 
the Supreme Court, nor the Eighth Circuit, however, has decided whether FDCPA liability 

may attach to conduct outside of bankruptcy proceedings, in an environment in which the 
bankruptcy debtor does not enjoy such protections, that is alleged to violate the Bankruptcy 
Code’s automatic stay provision.                                          
    In the absence of binding precedent, the Court considers the decisions of other 
courts around the country. There is no agreement among the federal circuits as to how to 

resolve this issue. The Second and Ninth Circuits have ruled that when remedies are 
available within the Bankruptcy Code itself for violations of the Code, those remedies 
preclude plaintiffs from seeking to recover under the FDCPA. See Garfield v. Ocwen Loan 
Servicing, LLC, 

 (2d Cir. 2016) (because the Bankruptcy Code provides a cause 
of action for automatic stay violations, there can be no actionable FDCPA claim for the 

same violation); Maniken v. Peters & Freedman, L.L.P., 

 (9th Cir. 2020) 
(FDCPA claims cannot be predicated upon a violation of the Bankruptcy Code under Ninth 
Circuit precedent). The Third and Seventh Circuits, on the other hand, have adopted Ms. 
Nelson’s position, that automatic stay violations may be subject to FDCPA liability. See 
Simon v. FIA Card Services, N.A., 

 (3d Cir. 2013); Randolph v. IMBS, Inc., 

 (7th Cir. 2004).                                             

    In Randolph, the Seventh Circuit held that a “demand for immediate payment while 
a debtor is in bankruptcy” violates the FDCPA “in the sense that it asserts that money is 
due, although, because of the automatic stay (

) . . . it is not.” 

. Judge Easterbrook, writing for the Randolph court, analyzed several provisions of the 
two statutes to determine whether any irreconcilable conflict existed between the two. 
Finding none, the court reasoned that because “[i]t is easy to enforce both statutes, and any 

debt collector can comply with both simultaneously,” the FDCPA claim should be allowed 
to proceed. 

. In Simon, the Third Circuit followed the Seventh Circuit’s lead. 
Citing  Randolph,  the  Simon  court  held  that  when  “FDCPA  claims  arise  from 
communications a debt collector sends a bankruptcy debtor in a pending bankruptcy 
proceeding, and the communications are alleged to violate the Bankruptcy Code or Rules, 

there is no categorical preclusion of the FDCPA claims.” 

. 
    The district courts within the Eighth Circuit facing this issue have tended to follow 
the reasoning of the Seventh and Third Circuits, that is, that the Bankruptcy Code does not 
preclude  FDCPA  liability  for  automatic  stay  violations.  See  Clark  v.  Brumbaugh  & 
Quandahl, P.C., LLO, 

, 920–21 (D. Neb. 2010) (noting that “at least 

three cases from other district courts within the Eighth Circuit” had previously determined 
that the Bankruptcy Code does not bar consumers from bringing an FDCPA action for 
alleged violations of the bankruptcy automatic stay provision, and adopting the rationale 
of those cases); Drnavich v. Cavalry Portfolio Service, LLC, No. 05-cv-1022 (PAM/RLE), 

 (D. Minn. Sept. 29, 2005) (adopting the Seventh Circuit’s analysis in 
Randolph). However, at least one court within this district has held that the Bankruptcy 

Code  does  preclude  additional recovery  for  automatic stay  violations,  albeit  under  a 
different statute. Zimmerman v. Bellows, 

 (D. Minn. 2013) (Kyle, J.) 
(finding that a plaintiff cannot recover under 

 for alleged automatic stay 
violations).                                                              
              b.   Analysis                                              
    In the absence of binding precedent, the Court analyzes the statutes themselves to 

determine  whether Congress  meant for  the  Bankruptcy  Code  to  supply  the  sole  and 
exclusive remedy for an automatic stay violation. In doing so, it applies all the ordinary 
rules and canons of statutory interpretation.                             
    At the outset, the Court notes that the proper analytical framework is not one of 
preemption  (whether  the  Bankruptcy  Code  preempts  or  precludes  application  of  the 

FDCPA), but rather one of repeal by implication. The doctrine of preemption stems from 
the Supremacy Clause, and is not implicated in this case. See Murphy v. Nat’l Collegiate 
Athletic Ass’n, 

 (2018). “One federal statute does not preempt another. 
When two federal statutes address the same subject in different ways, the right question is 
whether one implicitly repeals the other—and repeal by implication is a rare bird indeed.” 

Randolph, 

; see also Swinomish Indian Tribal Community v. BNSF Railway 
Co., 

 (9th Cir. 2020) (“The term “preempt,” when applied to a conflict 
between federal laws, is a bit of a misnomer . . . When a case involves the interplay between 
two statutory schemes created by Congress for different reasons and at different times, we 
typically ask whether the later statute repeals the prior one.”); In re American River Transp. 
Co., 

 (8th Cir. 2015) (“A new statute will not be read as wholly or even 

partially amending a prior one unless there exists a ‘positive repugnancy’ between the 
provisions of the new and those of the old that cannot be reconciled . . . The rule is to give 
effect to both if possible.”); Nat’l Ass’n of Home Builders v. Defs of Wildlife, 

  (2007)  (“We  will  not  infer  a  statutory  repeal  unless  the  later  statute  expressly 
contradicts the original act, or unless such a construction is absolutely necessary in order 
that the words of the later statute shall have any meaning at all.”) (cleaned up). 

    “The repeal of statutes by implication is not favored.” In re American River Transp. 
Co., 

. There are two ways for a court to find that a statute has been repealed, 
in  whole  or  in  part,  by  implication.  There  either  must  be  (1)  a  “clearly  expressed 
congressional intention” to replace the earlier statute with the later one, or (2) provisions 
in the two statutes that are in irreconcilable conflict, in which case “the later act to the 

extent of the conflict constitutes an implied repeal of the earlier one.” 

 (citing cases).1 
                   i.   Congressional Intent                             
    “Congressional intent is discerned primarily from the statutory text.” Thigulla v. 
Jaddou, 

 (8th Cir. 2024) (quoting CTS Corp. v. Waldburger, 

, 
12 (2014)). The text of the Bankruptcy Code (Title 11 of the U.S. Code) does not discuss 

                   –––––––––––––––––––––––––––––––––––––––––––––––––     
1    The current Bankruptcy Code was enacted in § 101 of the Bankruptcy Reform Act 
of 1978 (

), whereas the FDCPA was passed as part of the Consumer 
Credit Protection Act Amendment in 1977 (

). Thus, although both 
statutes were passed by the 95th United States Congress, and both have undergone multiple 
amendments since their passage, the FDCPA is the earlier statute for purposes of the repeal 
by implication analysis.                                                  
its effect on the scope of the FDCPA. There is no mention of other federal laws in 

 (“Applicability of chapters”), or in § 362(k)(1) (remedies for the willful violation of 

the automatic stay provision). In 

(k) (discussing the bankruptcy court’s 
contempt power and penalties for those who negligently or fraudulently prepare petitions), 
the Bankruptcy Code states that “[n]othing in this section shall be construed to permit 
activities that are otherwise prohibited by law, including rules and laws that prohibit the 
unauthorized practice of law.”                                            
    A plain reading of the text of Title 11 thus does not support the theory that Congress 

intended for the Bankruptcy Code to repeal and replace the FDCPA. If anything, § 110(k) 
suggests that Congress contemplated and accepted a certain degree of overlap between the 
Bankruptcy Code and other pre-existing consumer protection laws.          
    Not finding an “explicit statement by Congress” in the text of the Bankruptcy Code, 
the Court looks for evidence of Congressional intent in the legislative history of the statute. 

Scalia v. Red Lake Nation Fisheries, Inc., 

 (8th Cir. 2020). In this case, 
the legislative history is further evidence against a repeal by implication. Both statutes were 
passed by the same Congress, and nothing in the history suggests that the drafters of the 
Bankruptcy Reform Act intended it to limit the reach of the FDCPA passed in their 
previous session. To the contrary, at least one group of legislators held the view that the 

Bankruptcy  Reform  Act  was  not  intended  to  be  a  consumer  protection  law.  “The 
bankruptcy  rate  among  consumers  has  risen  accordingly,  but  without  the  required 
provisions in the Bankruptcy Act to protect those who need bankruptcy relief. This bill 
makes bankruptcy a more effective remedy for the unfortunate consumer debtor. This is 
not primarily a debtor’s bill, however.” H.R. Rep. No. 95-595, at 5 (1977). 

    Further, in the more than 45 years that the two statutes have co-existed, Congress 
has made several rounds of amendments to each. The FDCPA most notably was amended 
by the Fair Debt Collection Practices Act Amendment in 1986 (

) and the 
Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010 (

).2 
The Bankruptcy Code was most notably amended by the Bankruptcy Reform Act of 1994 
(

) and the Bankruptcy Abuse Prevention and Consumer Protection Act in 

2005 (

).3 In no amendment has Congress explicitly or clearly stated an intent 
for either law to limit the other. The inevitable conclusion is that Congress developed the 
statutes to address different problems, and that the potential for the schemes to overlap was 
not a concern.                                                            
    Finally, the Court considers whether the result of enforcing both statutes would lead 

to a result seemingly at odds with the congressional intent behind them. See Watt v. Alaska, 

, 266–67 (1981) (where two statutes apply to the same facts, courts should 
consider “the circumstances of the enactment of particular legislation” when determining 
whether the later statute impliedly repeals the former). While Congress set out in the 

                   –––––––––––––––––––––––––––––––––––––––––––––––––     
2    15 U.S.C. § 1692e was also amended by 

 Stat. 3009-425. 
3    The following acts have also amended 

 since the passage of the 
Bankruptcy Reform Act: 

 Stat. 235; 

 Stat. 1911; 

title II, 100 Stat. 3115–16; 

 Stat. 267, 269; Pub. L. 101-
508, 

-28; 

 Stat. 2681–886; 

 Stat. 
1706–07; 

 Stat. 2696; 

 Stat. 3558–59; 

 Stat. 970.                                                   
FDCPA to eliminate abusive debt collection practices that were plaguing consumers (

), the Bankruptcy Code was “not primarily a debtor’s bill” (Report No. 95-

595), and instead creates and maintains “the delicate balance of a debtor’s protections and 
obligations.” Midland Funding, 581 U.S. at 233–34. As discussed further infra, not every 
violation of the automatic stay provision can be remedied through the Bankruptcy Code. 
For example, a creditor who pursues a collection action in state court while a stay is in 
place could conceivably do so without willfully violating the Bankruptcy Code. See 

(k) (permitting recovery for “willful” violations). In such a scenario, the debt 

collector might exert pressure on the debtor to pay their debt outside of the oversight and 
protections of the bankruptcy court, and may cause the debtor to incur additional legal fees 
or risk potentially severe consequences. In such a case, the debtor has no remedy under the 
Bankruptcy Code itself. This is exactly the kind of scenario that a strict liability consumer 
protection statute like the FDCPA is designed to remedy. Thus, recognizing FDCPA 

liability for automatic stay violations furthers, rather than undermines, the goals of the 
Bankruptcy Code by disincentivizing collection activity outside of the framework  of 
bankruptcy policies and procedures.                                       
    In the absence of clear congressional intent that the Bankruptcy Code has implicitly 
repealed the FDCPA, the Court must determine whether the provisions of both statutes at 

issue here are in direct and irreconcilable conflict such that both cannot be enforced in this 
case. See Simon, 

 (“Finding no broad categorical preclusion, we turn to the 
narrower question of whether the Simons’ specific allegations present such a conflict with 
the Bankruptcy Code and Rules as to preclude their FDCPA claims.”).       
                   ii.  Irreconcilable Conflict                          
    The mere existence of overlapping prohibitions or protections does not rise to an 

irreconcilable conflict under the law. United States v. Davis, 

 (8th Cir. 
1992) (finding that the Wiretap Act did not implicitly repeal the Communications Act of 
1934,  even  though  both  statutes  prohibit  some  of  the  same  conduct,  and  permitting 
prosecution under both statutes).                                         
    The question is whether the provisions of the FDCPA (

 et seq.) 
relevant  to  the  claims  here  conflict  directly  and  irreconcilably  with  the  bankruptcy 

automatic stay provision (

). In Randolph, Judge Easterbrook carefully laid 
out the differences and similarities between the provisions at issue in reaching his ruling: 
                     Bankruptcy (§ 362)    FDCPA (§ 1692 et seq.)        
Who                  Anyone                Debt collector only           
Scienter             Willfulness           Strict liability              
                                           (§ 1692e(2)(A))               
Defense              None                  Bona fide error plus due      
                                           care (§ 1692k(c)), or         
                                           reliance on FTC opinion       
                                           (§ 1692k(e))                  
Statutory Damages    None                  $1,000 maximum                
                                           (§ 1692k(a)(2)(A))            
Compensatory Damages  Yes                  Yes (§ 1692k(a)(1))           
Punitive Damages     Yes                   No                            
Cap on Class Recovery  No                  Yes (§ 1692k(a)(2)(B)(ii))    
Maximum Recovery     No                    Yes, $500,000 or 1% of        
                                           net worth, whichever is less  
                                           (§ 1692k(a)(2)(B)(ii))        
Attorneys’ fees to debtor  Yes4            Yes (§ 1692k(a)(3))           
Attorneys’ fees to   No                    Yes (§ 1692k(a)(3))           
creditor                                                                 
Statute of limitations  None (laches defense only)  One year (§ 1692k(d)) 

.                                                          
    The two statutes are clearly both different and overlapping: “the [Bankruptcy] Code 
covers all persons, not just debt collectors, and all activities in bankruptcy; the FDCPA 
covers all activities by debt collectors, not just those affecting debtors in bankruptcy.” 

 
The most relevant area of difference, for purposes of the issues in this case, is the scienter 
element. QLF argues that because the FDCPA is a strict liability statute, allowing an 
FDCPA claim would create a backdoor to proving an automatic stay violation without 
meeting the Bankruptcy Code’s willfulness requirement. Because such an outcome would 
contravene § 362, QLF asserts there is an irreconcilable conflict between these provisions 

of the statutes.                                                          
    The argument that permitting an FDCPA claim to proceed would create a backdoor 
for easier recovery from automatic stay violations is unavailing. As Judge Easterbrook 



                   –––––––––––––––––––––––––––––––––––––––––––––––––     
4    The Randolph court wrote “no” for whether § 362 allows for attorneys’ fees. 

; but see 

(k)(1) (an injured party may recover costs and 
attorneys’ fees upon a showing of a willful violation).                   
noted, “they are simply different rules, with different requirements of proof and different 
remedies.” Randolph, 

.                                     

    Most  importantly,  it  is  possible  for  debt  collectors  to  comply  with  both  the 
Bankruptcy Code and the relevant provisions of the FDCPA, and QLF does not argue 
otherwise. The specific allegations at issue here are violations of 15 U.S.C. § 1692d 
(harassment or abuse); § 1692e (false or misleading representations); § 1692e(5) (the threat 
to take action that cannot legally be taken); and § 1692f (unfair practices). These provisions 
of the FDCPA are not irreconcilable with the Bankruptcy Code. As explained by the 

Randolph court, “whether overlapping and not entirely congruent remedial systems can 
coexist is a question with a long history at the Supreme Court, and an established answer: 
yes.” 

 (citing cases).                                     
    The Court finds that Congress has never clearly expressed, nor even implied, an 
intent to repeal the FDCPA with the Bankruptcy Code. The Court further finds that where, 

as here, a plaintiff alleges that a debt collector pursued a state collection action in violation 
of the automatic stay provision, FDCPA enforcement does not irreconcilably conflict with 
enforcement of the Bankruptcy Code. Because debt collectors can comply with both 
statutes, both must be given effect. See In re American River Transp. Co., 

. 
Because both statutes must be given effect, and the pleading rules permit alternative 

theories  of  liability,  the  Court  denies  QLF’s  motion  to  dismiss  the  FDCPA  claims 
predicated on an automatic stay violation.                                
         2.   FDCPA Claim for Improper Communications                    
    The FDCPA prohibits “communication” with a consumer “in connection with the 
collection of any debt,” if the debt collector “knows the consumer is represented by an 

attorney with respect to such debt and has knowledge of, or can readily ascertain, such 
attorney’s name and address.” 

(a)(2); Ojogwu v. Rodenburg Law Firm, 

 (8th Cir. 2022). To survive a motion to dismiss on this claim, Ms. Nelson 
must plausibly allege that: (1) she was represented by an attorney with respect to the debt; 
(2) the defendant knew she was represented by an attorney with respect to the debt; (3) the 

defendant  communicated  with  her,  and;  (4)  the  defendant  was  not  authorized  to 
communicate with her, either by consent or by a court. Montgomery v. Shermeta, Adams 
& Von Allmen, P.C., 

, 854–55 (W.D. Mich. 2012); also Gattison v. 
Credit Control, LLC, No. 4:23-cv-157, 

, at *2 (E.D. Mo. July 7, 2023); 
see Schmitt v. FMA Alliance, 

 (8th Cir. 2005) (per curium) (a plaintiff 

must allege the defendant’s knowledge of the representation prior to the communication). 
    Ms.  Nelson  alleges  the  following  facts  in  support  of  her  FDCPA  improper 
communication claim:                                                      
      •  “On May 17, 2023, the Court mailed via first class mail a notice to Defendant 
         University notifying it of Plaintiff’s bankruptcy via the Bankruptcy Noticing 

         Center.” (Am. Compl. ¶ 12.)                                     
      •  “On or about June 8, 2023, Plaintiff added Defendant Quigley to Plaintiff’s 
         bankruptcy matter.” (Id. ¶ 35.)                                 
      •  “Defendants then received an email from Plaintiff’s bankruptcy counsel 
         dated June 23, 2023, providing additional information concerning Plaintiff’s 

         bankruptcy.” (Id. ¶ 37.)                                        
      •  “Defendants  knew  or  should  have  known  through  its  bankruptcy  scrub 
         systems or should have known from the communications received from the 
         bankruptcy Court and direct communications from her bankruptcy counsel 
         that Plaintiff was represented by an attorney, specifically her bankruptcy 

         counsel, Walker & Walker Law Office Ltd.” (Id. ¶ 38.)           
      •  “Defendant Quigley’s July 12, 2023, communication to the Dakota County 
         Court referencing the collection lawsuit was sent directly to Plaintiff, in 
         violation of 15 U.S.C. § 1692c, when it knew that Plaintiff was represented 
         by an attorney.” (Id. ¶ 42.)                                    

    QLF asks the Court to consider certain exhibits it submitted as attachments to a 
declaration by Patrick Newman (Newman Decl. [Doc. No. 16]; Second Newman Decl. 
[Doc. No. 51].) Exhibits A–J, L–N, and Q, are available and publicly filed in the state court 
collection action docket. Exhibit O is the email sent by Ms. Nelson’s bankruptcy counsel 
to QLF on June 23, 2023. Exhibit R is the email correspondence between QLF and the 

Dakota County court that is the subject of this claim. The Court considers these exhibits as 
they are either a part of the public record or do not contradict the complaint, and they are 
necessarily embraced by the pleadings. See Glow in One Mini Golf, 

 (8th 
Cir. 2022).                                                               
    QLF argues that the FDCPA improper communications claim should be dismissed 
for two reasons: (1) that Ms. Nelson fails to adequately allege that QLF had notice of 

representation; and (2) that the communication alleged was not “in connection with the 
collection of any debt” within the meaning of the FDCPA.5                 
              a.   Knowledge of Ms. Nelson’s Legal Representation        
    In the Eighth Circuit, a creditor’s actual knowledge of a debtor’s representation 
cannot be imputed to its agent. Reygadas v. DNF Assocs., LLC, 

 (8th 
Cir. 2020); Schmitt, 

. This rule flows from the basic structure of agency 

law, “which dictates that while the knowledge of the agent is imputed to the principal, the 
converse is not true.” Schmitt, 

. Accordingly, in this case, the Court limits 
its analysis to what Ms. Nelson plausibly alleges QLF actually knew with respect to her 
legal representation, without regard to the knowledge of the University.  
    Ms. Nelson alleges that QLF was added to the bankruptcy matter on June 8, 2023, 

and received an email from her bankruptcy counsel on June 23, 2023. (Am. Compl. ¶¶ 35, 
37.) The email was sent from Andrew Walker, managing partner, “on Behalf of Walker 
and Walker Law Offices, PLLC,” on the law firm’s letterhead, and includes Mr. Walker’s 
MN Attorney Registration Number. (Newman Decl. 154–55.) The email identifies Ms. 
Nelson, states that she had filed for bankruptcy, and explains that the automatic stay 

                   –––––––––––––––––––––––––––––––––––––––––––––––––     
5    QLF also argues that Ms. Nelson raised her improper communication claim for the 
first time at oral argument, and that because the issue was not briefed, she waived it and 
the Court should not consider it. A plaintiff is not obligated to defend in briefing claims 
never addressed in a defendants’ motion to dismiss, and does not waive a claim by failing 
to do so. Regardless, the Court has received supplemental briefing from both parties on 
this issue, rendering the question of waiver moot.                        
protection “is effective against all creditors” and prohibits acts including “[a]dvancement 
of court processes to gain or enforce a judgment.” (Id. at 154.) The email askes recipients 

who feel that the notice does not apply to them to “reply to this email immediately or call” 
the firm’s number, and instructs recipients to provide their attorneys’ contact information 
if they are represented in the matter. (Id. at 154–55.)                   
    The Court finds that Ms. Nelson has plausibly alleged that QLF had notice of her 
legal  representation  with  respect  to  the  bankruptcy  action.  In  order  to  satisfy  the 
requirements for a claim under § 1692c(a)(2), that knowledge must be “with respect to the 

very debt about which” QLF communicated with her. Gilbert v. TrueAccord Corp., 

, 667 (N.D. Ill. 2022).                                       
    QLF argues that, as a matter of law, knowledge of Ms. Nelson’s legal representation 
in the bankruptcy proceedings is insufficient to allege knowledge of her representation with 
respect to the debt at issue in her state court collection action. However, courts have 

generally  held that  actual  knowledge  of  active  representation  by  bankruptcy  counsel 
satisfies the knowledge requirements for a § 1692c(a)(2) claim. See Lewis v. Northwest 
Collectors, Inc., No. 15-cv-3671, 

, at *6 (N.D. Ill. Jan. 25, 2017) (notice 
of  bankruptcy  counsel  establishes  knowledge  of  representation  for  §  1962c(a)(2) 
purposes); Mogg v. Jacobs, No. 15-cv-1142, 

, at *3 (S.D. Ill. Mar. 15, 

2016) (finding that pleading notice of a bankruptcy filing and associated representation is 
sufficient for a § 1692c(a)(2) claim to survive a motion to dismiss); Robin v. Miller and 
Steeno, P.C., No. 4:13-cv-2456, 

 at *2 (E.D. Mo. July 29, 2014) 
(imposing FDCPA liability for continuing communication after the defendant was advised 
that the plaintiff had bankruptcy counsel); Thomas v. Boscia, No. 1:08-cv-42, 

, at *5 (S.D. Ind. Aug. 28, 2009) (finding that a collection firm knew the plaintiff 

was represented once it received a bankruptcy filing notice).             
    The  Federal  Trade  Commission  is  authorized  to  enforce  compliance  with  the 
FDCPA, except to the extent that enforcement is specifically committed to another agency 
under the Consumer Financial Protection Act of 2010. 15 U.S.C. § 1692l(a). In 1988, the 
FTC published official commentary interpreting the improper communication provision, 
explaining that “[i]f a debt collector learns that a consumer is represented by an attorney in 

connection with the debt, even if not formally notified of this fact, the debt collector must 
contact only the attorney and must not contact the consumer.” Federal Trade Commission, 
Statements  of  General  Policy  or  Interpretation  Staff  Commentary  on  the  Fair  Debt 
Collection  Practices  Act,  

,  50104  (1988)  (emphasis  added).  The 
commentary continues to explain that, when a consumer informs the debt collector that an 

attorney is retained to represent them on other debts, that debt collector has notice regarding 
the other debts and must deal only with the consumer’s attorney for those debts as well.  
    When  an  individual  commences  bankruptcy  proceedings,  those  proceedings 
generally embrace all monies owed by the debtor. See, e.g., 

 (a bankruptcy 
petition  automatically  stays  all  other  activity  involving  debts  that  arose  prior  to  the 

petition’s filing). As the district court in Mogg noted, pleading notice of such representation 
accordingly satisfies the pleading requirements for a § 1962c(a)(2) claim—there is no 
requirement to plead notice of representation for each specific debt. See 

, 
at *3.                                                                    
    QLF directs the Court to Hubbard v. Nat’l Bond and Collection Assocs., Inc., as 
support for its argument that notice of bankruptcy counsel is insufficient to establish 

knowledge of representation for a specific debt. 

 (D. Del.), aff’d, 

 (3d Cir. 1991). In Hubbard, however, it was undisputed that the debt collector “was 
unaware of the plaintiff’s bankruptcy” and had no actual knowledge of any representation 
at  all.  Id.  at  427.  Here,  however,  it  is  alleged  that  QLF  received  actual  notice  of 
representation with respect to the bankruptcy proceedings approximately three weeks 
before sending the communication at issue.6                               

    The Court finds, under these circumstances, that Ms. Nelson had plausibly alleged 
that QLF knew that she was represented in an ongoing bankruptcy proceeding, and thus 
had knowledge of her representation for purposes of § 1692c(a)(2) with respect to any debt 
encompassed by the bankruptcy proceedings.                                
              b.   Communication in Connection with the Collection of a  
                   Debt                                                  
    QLF  next  argues  that  the  email  sent  to  the  Dakota  County  Court  was  not  a 
communication “in connection with the collection of any debt” within the meaning of 

                   –––––––––––––––––––––––––––––––––––––––––––––––––     
6    The other cases cited by QLF are similarly inapposite. Graziano, Robinson, and 
Goodman, for example, each dealt with situations where a debt collector had knowledge 
of a debtor’s representation for a specific separate and distinct debt. Graziano v. Harrison, 

 (3rd. Cir. 1991), overruled on other grounds, Riccio v. Sentry Credit, 
Inc., 

 (3rd Cir. 2020); Robinson v. Transworld Systems, Inc., 

 (N.D.N.Y. 1995); Goodman v. Southern Credit Recovery, Inc., Nos. 97-cv-2385, 
98-cv-1174, 

, at *9 (E.D. La. Jan. 8, 1999). In Shrestha v. State Credit 
Adjustment Bureau, Inc., 

 (D. Conn. 2000), at a hearing after a demand 
letter was sent by an attorney but before the communication at issue, the “plaintiff appeared 
pro se and told the court he was representing himself.” 

.       
§ 1692c(a)(2). Ms. Nelson counters that because the purpose of the communication was to 
ensure that the collection action would proceed, it was a communication in connection with 

the collection of a debt.                                                 
    The FDCPA defines “communication” as “the conveying of information regarding 
a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). In 
determining whether a communication is in connection with the collection of any debt, the 
Eighth Circuit employs the “animating purpose test.” Heinz v. Carrington Mortgage Servs., 
LLC, 

 (8th Cir. 2021) (citing McIvor v. Credit Control Servs., Inc., 

 (8th Cir. 2014)). “Under this test, for a communication to be in connection 
with the collection of a debt, an animating purpose of the communication must be to induce 
payment by the debtor.” 

 (internal citation omitted).                  
    The animating purpose of a communication is generally a question of fact, and 
Courts must “look at each communication individually” to determine whether it satisfies 

the test. 

 An explicit demand for payment is not required for a communication to satisfy 
the test. Rather, courts consider a number of factors when determining the animating 
purpose of a communication, including the communication’s content and context, and the 
relationship between the parties. Backlund v. Messerli & Kramer, P.A., 

 (D. Minn. 2013); see also Heinz, 3 F.4th at 1112–13; McIvor, 

. 

The Seventh Circuit has observed repeatedly that where the only relationship between the 
parties arose out of the defendant’s ownership of the plaintiff’s debt, the communication is 
more likely to satisfy the animating purpose test. See Gburek v. Litton Loan Servicing LP, 

 (7th Cir. 2010); Ruth v. Triumph Partnerships¸ 

 (7th Cir. 2009). 
    Several courts have held that a “letter that is not itself a collection attempt, but that 
aims to make such an attempt more likely to succeed, satisfies the animating purpose test.” 

Randall v. Paul, 

 (Minn. Ct. App.  2017) (adopting the  Eighth 
Circuit’s animating purpose test) (internal citation omitted); see also Grden v. Leiken 
Ingber & Winters PC, 

 (6th Cir. 2011); Gburek, 

.  
    The communication at issue here is QLF’s July 12, 2023 email to the Dakota County 
Dourt. The email, from Sarah B. Quigley, reads:                           

    This letter is not being submitted to the Court to violate 11 USC 362, but 
    simply to inform the Court that I will not be attending the hearing scheduled 
    by the Court on 6/14/2023 for a date of 7/17/2023 at 9:00 AM due to a 
    conflict, as I am already scheduled to be in Washington County on another 
    matter at that same time.                                            

(Second Newman Decl. at 3.) The subject line of the email states the name and court file 
number for the state collection action, as well as QLF’s internal file number for the case. 
The bottom of the email indicates that Ms. Nelson is copied directly, and includes her full 
name and home address. (Id.)                                              
    The  Court  finds  that  Ms.  Nelson  has  sufficiently  pled  a  communication  in 
connection with the collection of a debt to overcome the motion to dismiss. Several facts, 
as alleged, weigh in favor of finding that the July 12, 2023 email satisfies the Eighth 
Circuit’s animating purpose test. The relationship between Ms. Nelson and QLF is wholly 
defined by her debt to the University. The email itself is a clear reminder of an upcoming 
hearing on the debt collection action, and scheduling the hearing is a necessary part of a 
strategy to induce payment of the debt. As noted by this Court in Ojogwu v. Rodenburg 
Law Firm, No. 19-cv-563 (PJS/TNL), 

 (D. Minn. Nov. 19, 2019), the 
fact  that  this  was  a  court-facing  email  does  not  shield  the  communication  from  the 
§ 1692c(a)(2) inquiry.  

 at *4. Further, this is a case where the plaintiff 

alleges injury and trauma caused by the unlawful continuation of court processes in the 
same collection action, and the email makes no effort to cancel the existing hearing date. 
Considering the context as alleged, Ms. Nelson has plausibly alleged that such voluntary 
communication  to  the  court  about  a  future  hearing  could  be  intended  to  pressure  a 
consumer in a manner that makes collection more likely to succeed. See Randall, 

. Accordingly, the Court denies QLF’s motion to dismiss Ms. Nelson’s 

§ 1692c(a)(2) claim.                                                      
    D.   Reference to Bankruptcy Court                                   
    As an alternative to dismissal under Rules 12(b)(1) and 12(b)(6), the Defendants 
move the Court to refer this matter to the bankruptcy court. The Court’s discretion to refer 
and withdraw the reference from the bankruptcy court is defined by statute: 

    Notwithstanding  the  provisions  of  paragraph  (1)  of  this  subsection,  the 
    district court, with the consent of all the parties to the proceeding, may refer 
    a proceeding related to a case under title 11 to a bankruptcy judge to hear and 
    determine and to enter appropriate orders and judgments, subject to review 
    under section 158 of this title. . .                                 

    The district court may withdraw, in whole or in part, any case or proceeding 
    referred under this section, on its own motion or on timely motion of any 
    party, for cause shown. The district court shall, on timely motion of a party, 
    so withdraw a proceeding if the court determines that resolution of the 
    proceeding requires consideration of both title 11 and other laws of the 
    United  States  regulating  organizations  or  activities  affecting  interstate 
    commerce.                                                            

(c)(2), 157(d). The guiding factors for a court to consider in exercising its 
discretion include: (1) whether the claim is “core” or “non-core,” (2) the efficient use of 
judicial resources, (3) the existence of a jury trial demand, and (4) the prevention of delay. 
Kelley, 

 (citing cases).                                   

    When determining whether to refer a case involving a claim for an automatic stay 
violation to the bankruptcy court, district courts often consider whether good cause likely 
exists for withdrawal of the reference under § 157(d). For example, in Barton, Judge Davis 
declined to refer a case to the bankruptcy court after finding that “good cause exists to 
withdraw the matter” and that the plaintiff “would nonetheless file a motion to withdraw 
the proceeding” after a referral. 

, at * 9. Similarly in DuBois v. Ford 

Motor Credit Co., No. 00-cv-1446 (PAM/SRN), 

, at *1 (D. Minn. Jan. 
19, 2001), Judge Magnuson declined to refer a matter after noting that one of the parties 
had requested that any potential jury trial on related FDCPA claims be held in the district 
court. On the other hand, when the bankruptcy claims are not accompanied by federal non-
bankruptcy claims, district courts generally exercise discretion in favor of referral. See, 

e.g., Reinhardt, 

, at *2 (referring a matter where the only non-bankruptcy 
claim was a state law claim, and distinguishing Barton and DuBois on that basis). 
    Causes of action for automatic stay violations are considered to be core proceedings 
under the Bankruptcy Code. In re Fine, 

 (Bankr. D. Minn. 2002); See In 
re McDougall, 

 (B.A.P. 8th Cir. 2018) (“A core proceeding is one that 

arises only in bankruptcy or involves a right created by federal bankruptcy law.”). Related 
proceedings, which exist outside of the bankruptcy context, are considered to be non-core 
proceedings. In re McDougall, 

. This case involves both core (the alleged 
violation of the automatic stay under § 362) and non-core (the alleged FDCPA violations 
and tort claims) proceedings. That factor is accordingly neutral on the question of referral. 

    The remaining factors weigh in favor of exercising the Court’s discretion not to refer 
the matter to bankruptcy court. Ms. Nelson has alleged claims under federal statutes outside 
of the Bankruptcy Code, which for the reasons stated supra have survived the pleading 
stage of this lawsuit. She has objected to referral, and would presumably move to withdraw 
the case upon a such a referral. She has also made a jury trial demand. The Court finds that 
concerns  for  judicial  efficiency  and  reduction  of  delay  weigh  in  favor  of  retaining 

jurisdiction, and accordingly declines to refer the matter to the bankruptcy court. 
    E.   Supplemental Jurisdiction                                       
    A  federal  district  court  has  supplemental  jurisdiction  over  “all  other  claims,” 
including state tort claims, that are “so related to claims in the action within such original 
jurisdiction that they form part of the same case or controversy under Article III of the 

United States Constitution.” 

(a). There are four circumstances under 
which a federal court may decline to exercise its supplemental jurisdiction authority: (1) if 
the  state  claim  raises  a  novel  or  complex  issue  of  state  law;  (2)  if  the  state  claim 
substantially predominates over the claim or claims over which the district court has 
original jurisdiction; (3) if the district court has dismissed all claims over which it has 

original jurisdiction; or (4) if other compelling reasons for declining jurisdiction exist. 
Wong v. Minnesota Dept. of Human Servs., 

 (8th Cir. 2016); U.S.C. 
§ 1367(c).                                                                
    In  this  case,  both  Defendants  request  that  the  Court  decline  to  exercise  its 
supplemental  jurisdiction  over  Ms.  Nelson’s  Intrusion  Upon  Seclusion  claim  after 

dismissal of the federal claims. For the reasons stated, the Court has ruled that the federal 
claims survive dismissal. Accordingly, the Court will exercise supplemental jurisdiction 
over Count 3, the state law claim of Intrusion Upon Seclusion.            
III.  ORDER                                                               
    Based  on  the  submissions  and  the  entire  file  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that:                                                      

    A.   Defendant Quigley Law Firm, PLLC’s Motion to Dismiss [Doc. No. 28] is 
         DENIED; and                                                     
    B.   Defendant St. Catherine University’s Motion to Dismiss [Doc. No. 32] is 
         DENIED.                                                         

IT IS SO ORDERED.                                                         


Dated: May  21, 2024                 /s/ Susan Richard Nelson             
                                    SUSAN RICHARD NELSON                 
                                    United States District Judge         

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Amanda Marie Nelson,                    Case No. 23-cv-2222              

          Plaintiff,                                                     

v.                                          ORDER                        

St. Catherine University, and Quigley Law                                
Firm, PLLC,                                                              

          Defendants.                                                    


Carter B. Lyons and Thomas J. Lyons, Jr., Consumer Justice Center P.A., 367 Commerce 
Court, Vadnais Heights, MN 55127, for the Plaintiff.                     

John C. Gunderson, Donohue McKenney, LTD, 11222 86th Avenue N, Maple Grove, 
MN 55369, and Thomas B. Wieser, Meier, Kennedy & Quinn, Chartered, 445 Minnesota 
Street, Suite 2200, St. Paul, MN 55101, for Defendant St. Catherine University. 

Kiralyn Locke and Patrick D. Newman, Bassford Remele PA, 100 South 5th Street, Suite 
1500, Minneapolis, MN 55402, for Defendant Quigley Law Firm, PLLC.       


SUSAN RICHARD NELSON, United States District Judge                        
    This matter is before the Court on Defendant Quigley Law Firm, PLLC (“QLF”)’s 
Motion  to  Dismiss  [Doc.  No.  28],  and  on  Defendant  St.  Catherine  University  (“the 
University”)’s  Motion  to  Dismiss  [Doc.  No.  32].  Based  on  a  review  of  the  files, 
submissions, and proceedings herein, and for the reasons below, the Court denies both 
motions.                                                                  
I.   BACKGROUND                                                           
    A.   Factual Allegations                                             
    At the motion to dismiss stage, the Court accepts the factual allegations in the 
complaint as true and draws all reasonable inferences in the nonmovant’s favor. Cook v. 

George’s, Inc., 

 (8th Cir. 2020). The Court “generally must ignore 
materials outside the pleadings, but it may consider some materials that are part of the 
public record or do not contradict the complaint, as well as materials that are necessarily 
embraced by the pleadings.” Glow in One Mini Golf, LLC v. Walz, 

 
(8th Cir. 2022). Relevant to the issues before the Court, Ms. Nelson makes the following 

factual allegations.                                                      
    The Defendants initiated a collection action against Ms. Nelson for a debt incurred 
while she was a student at the University, and filed the action in Dakota County District 
Court in October 2017. (Am. Compl. [Doc. No. 26] ¶¶ 7–9.)                 
    On May 12, 2023, Ms. Nelson commenced a Chapter 7 bankruptcy case. (Id. ¶ 11.) 

The  United  States  Bankruptcy  Court,  District  of  Minnesota,  mailed  a  notice  to  the 
University of the bankruptcy action via first class mail on May 17, 2023. (Id. ¶ 12.) 
    On or about May 16, 2023, in response to Ms. Nelson’s failure to appear or complete 
a financial disclosure form in the open collection action, the Dakota County District Court 
issued a bench warrant for her arrest. (Id. ¶ 17.) The Defendants did nothing to dismiss or 

stay the collection action, to quash the pending bench warrant, or to alert the issuing court 
that Ms. Nelson had filed for bankruptcy. (Id. ¶¶ 19–20.) Ms. Nelson was arrested on the 
warrant, booked, and fingerprinted on May 31, 2023. (Id. ¶ 21.)           
    The conditions of the warrant were that Ms. Nelson should be released upon either 
(1) posting a cash bail, or (2) completing a financial disclosure form pursuant to a demand 

for disclosure that had been issued on January 12, 2023 in the collection action. (Id. ¶ 18.) 
After Ms. Nelson was booked at the Dakota County Jail, the arresting officer informed her 
that she would not have to stay the night if she completed the financial disclosure form. 
(Id. ¶ 30.) Ms. Nelson completed the form and was released at 1:30 a.m. on June 1, 2023, 
approximately three hours after her arrest. (Id. ¶¶ 28–32.)               
    Ms. Nelson added Defendant QLF to the bankruptcy matter on June 8, 2023. (Id. 

¶ 35.) On June 23, 2023, her bankruptcy counsel sent an email to the Defendants providing 
more information on the bankruptcy matter. (Id. ¶ 37.)                    
    The  Dakota  County  Sheriff  sent  an  executed  financial  disclosure  form  to  the 
Defendants on June 2, 2023. (Id. ¶ 34.) On June 14, 2023, the Dakota County District Court 
issued a Notice of Remote Zoom hearing set for July 17, 2023 in the collection matter, 

requiring attendance by all parties. (Id. ¶ 36.) On July 12, 2023, QLF notified the district 
court that its attorney had a scheduling conflict and would not be able to attend the hearing. 
(Id. ¶ 40.) The July 12, 2023 communication was sent directly to Ms. Nelson, without 
copying her counsel. (Id. ¶ 42.)                                          
    The Defendants did not at any point inform the district court of Ms. Nelson’s 

bankruptcy matter, or take any action to dismiss, suspend, or stay the collection action. (Id. 
¶ 46.) Ms. Nelson hired counsel to appear at the remote hearing set in the collection action 
on July 17, 2023. (Id. ¶ 48.) At that hearing, her counsel notified the court of the pending 
bankruptcy  case.  (Id.)  The  district  court  immediately  stayed  the  collection  action 
proceedings. (Id. ¶ 49.)                                                  

    The delay in staying the collection action resulted in Ms. Nelson incurring over 
$1,000 in legal fees and costs. (Id.) She further alleges that she suffered emotional distress, 
fear, anxiety, and loss of sleep due to the Defendants’ continued efforts to collect on her 
debt. (Id. ¶ 50.)                                                         
    B.   The Present Lawsuit                                             
    Ms. Nelson initiated these proceedings by filing a Complaint on July 26, 2023. 

(Compl. [Doc. No. 1].) She amended her Complaint on September 9, 2023. (Am. Compl.) 
In her Amended Complaint, she alleges three counts. Count 1 alleges violations of the 
automatic stay provision of the United States Bankruptcy Code, 

, against 
both Defendants. (Id. ¶¶ 51–57.) Count 2 alleges violations of the Fair Debt Collection 
Practices Act (“FDCPA”), 

, et seq., against QLF. (Id. ¶¶ 58–61.) Count 3 

alleges the common law tort of Intrusion Upon Seclusion against both Defendants (Id. 
¶¶ 62–66.)                                                                
    The Defendants filed their respective motions to dismiss the Amended Complaint 
on October 13, 2023 [Doc. Nos. 28, 32]. Both Defendants argue that the Court lacks subject 
matter jurisdiction to consider Ms. Nelson’s claim under Count 1, and that it should be 

dismissed without prejudice, or alternatively referred to the United States Bankruptcy 
Court. QLF argues further that Ms. Nelson’s FDCPA claim under Count 2 is precluded by 
the Bankruptcy Code to the extent that it is predicated on the alleged automatic stay 
violation. Both Defendants request that, should the Court dismiss the first two counts, it 
decline to exercise supplemental jurisdiction over the state law tort claim under Count 3. 

    The parties argued the motions before the Court on December 20, 2023. (See Minute 
Entry [Doc. No. 49].) Following the hearing, the Court requested supplemental briefing 
from QLF and Ms. Nelson. In its supplemental briefing, QLF argues that, to the extent Ms. 
Nelson’s FDCPA claim relies on alleged improper communications, the Court should 
dismiss her claim because she fails to adequately plead that any communication occurred 
or that QLF had notice of her legal representation.                       

II.  DISCUSSION                                                           
    A.   Legal Standards                                                 
    The Defendants move the Court to dismiss Ms. Nelson’s Amended Complaint 
pursuant to Federal Rules of Civil Procedure, Rule 12(b)(1) for lack of subject matter 
jurisdiction, and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. 
         1.   Challenge to Subject Matter Jurisdiction                   

    Federal district courts have subject matter jurisdiction over civil actions that involve 
a federal question or diversity of citizenship. See 28 U.S.C. §§ 1331–32. Federal question 
jurisdiction exists when the action arises “under the Constitution, laws, or treaties of the 
United States.” Id. §1331.                                                
    In deciding a motion under Rule 12(b)(1), the Court must first distinguish between 
a facial attack and a factual attack on its subject matter jurisdiction. Croyle by and through 

Croyle v. United States, 

 (8th Cir. 2018) (citing Osborn v. United States, 

, 729 n.6 (8th Cir. 1990)). In a factual attack, the issue of jurisdiction is bound 
up with the merits of the case, whereas in a facial attack the issue of jurisdiction can be 
resolved on the face of the pleadings. Moss v. United States, 

 (8th Cir. 

2018).                                                                    
    Here, the Defendants raise a purely legal challenge to the Court’s subject matter 
jurisdiction, arguing that an Article III district court lacks jurisdiction to hear alleged 
violations of the United States Bankruptcy Code. The Court finds that this is a facial attack, 
capable of resolution on the face of the pleadings. Accordingly, the Court “restricts itself 
to the face of the pleadings, and the non-moving party receives the same protections as it 

would defending against a motion brought under Rule 12(b)(6).” Davis v. Anthony, Inc., 

 (8th Cir. 2018). The plaintiff has the burden of proving subject matter 
jurisdiction. Id.                                                         
         2.   Alleged Failure to State a Claim                           
    When considering a motion to dismiss for failure to state a claim under Rule 

12(b)(6), the Court accepts the facts alleged in the complaint as true and views those 
allegations in the light most favorable to the plaintiff. See Dormani v. Target Corp., 

 (8th Cir. 2020). However, the Court need not accept a plaintiff’s conclusory 
statements or legal conclusions. Retro Television Network, Inc. v. Luken Communications, 
LLC, 

, 768–69 (8th Cir. 2012). The Court ordinarily does not consider matters 

outside of the pleadings on a Rule 12(b)(6) motion, but it may consider some materials that 
are part of the public record or do not contradict the complaint, as well as materials that are 
necessarily embraced by the pleadings. Glow in One Mini Golf, 

.   
    To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual 
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 

Iqbal, 

 (2009) (quoting Bell Atl. Corp. v. Twombly, 

 
(2007)). The facts alleged must have enough specificity “to raise a right to relief above the 
speculative level.” Bell Atl. Corp., 

.                     
    B.   Facial Attack on this Court’s Subject Matter Jurisdiction       
    “[T]he district courts of the United States have ‘original and exclusive jurisdiction 
of all cases under title 11.’” Stern v. Marshall, 

 (2011) (quoting 

(a)). “District courts may refer any or all such proceedings to the bankruptcy judges 
of their districts.” Id.; also 

. This district’s local rules state that all 
“bankruptcy cases and proceedings” are referred to the bankruptcy judges. Minn. Loc. R. 
Bankr. P. 1070–1.                                                         
    The Supreme Court held in Stern that § 157, which allows district courts to enact 

rules like this district’s local rules for referring cases to bankruptcy courts, “does not have 
the hallmarks of a jurisdictional decree.” 

. Instead, § 157 “allocates the 
authority to enter final judgment between the bankruptcy court and the district court. That 
allocation does not implicate questions of subject matter jurisdiction.” Id. 
    The United States Courts of Appeals for the Third, Fourth, Seventh, and Eleventh 

Circuit have all held that district court judges have subject matter jurisdiction to entertain 
an action for a violation of an automatic stay under the Bankruptcy Code. See Potter v. 
Newkirk, 

, 698 (3d Cir. 2020); Houck v. Substitute Trustee Services, 
Inc., 

 (4th Cir. 2015); Justice Cometh, Ltd. v. Lambert, 

 (11th Cir. 2005) (per curium); Price v. Rochford, 

, 832 n.1 (7th Cir. 
1991). Additionally, this Court, and other courts within this district, have previously 

observed that district courts retain original jurisdiction over actions arising under the 
Bankruptcy Code. See Kelley v. JPMorgan Chase & Co., 

, 858–61 (D. Minn. 
2011) (Nelson, J.) (finding that a district court has discretion to withdraw any proceeding 
referred to a bankruptcy court); also Reinhardt v. Rent-A-Center West, Inc., No. 21-cv-
2158 (NEB/LIB), 

, at *2 n. 3 (D. Minn. Jan. 18, 2022); Barton v. Ocwen 
Loan Servicing LLC, No. 12-cv-162 (MJD/JJG), 

, at *9 (D. Minn. Sept. 

26, 2012) (retaining jurisdiction).                                       
    Against this authority, the Defendants rely on a 2010 decision from this district in 
which the court (Kyle, J.) concluded that the “weight of the authority” supports a finding 
that district courts have only appellate authority over actions arising under the Bankruptcy 
Code. See Carnes v. IndyMac Mortg. Servs., No. 10-cv-3005 (RHK/SRN), 

, at *3 (D. Minn. Dec. 17, 2010); also Zimmerman v. Bellows, 

 (D. Minn. 2013) (Kyle, J.) (determining that the district court lacked jurisdiction to 
hear a claim for violating the automatic stay provision based on his prior holding in 
Carnes). Judge Kyle’s analysis in Carnes relied primarily on a 2001 case from the Second 
Circuit, Eastern Equipment & Servs. Corp. v. Factory Point Nat’l Bank, Bennington, 

 (2d Cir. 2001), which held the same.                             
    The Second Circuit has recently observed that “our Eastern Equipment decision 
failed to address the contradiction between our holding and the plain language of 

(a), which provides that ‘[e]xcept as provided in subsection (b) of this section, the 
district courts shall have original and exclusive jurisdiction of all cases under title 11.’ 
Thus, our holding in Eastern Equipment has been criticized by many of our sister circuits.” 

Inn World Report, Inc. v. MB Financial Bank NA, 

, at *2 (2d Cir. 2022) 
(referring to Potter, 802 F. App’x at 699–700; Houck, 791 F.3d at 481–82; Price, 

 & n.1; and Justice Cometh, 

). The Second Circuit in Inn World 
Report acknowledged that the Supreme Court’s holding in Stern necessarily abrogates its 
ruling in Eastern Equipment, but ultimately found that it did not need to reach the issue 
because the district court in Inn World Report lacked jurisdiction on separate grounds. 

 

    The Court finds that under the plain language of 

(a) and 157, and 
the United States Supreme Court’s holding in Stern, this Court has jurisdiction to entertain 
an  action  brought  for  an  alleged  violation  of  the  Bankruptcy  Code’s  automatic  stay 
provision. The overwhelming weight of authority, both within and beyond this district, 
supports this ruling.                                                     

    C.   Allegations of Violations of the FDCPA                          
    Ms. Nelson’s FDCPA claim alleges violations of several provisions of the statute: 
15  U.S.C.  §§ 1692c  (communication  in  connection  with  debt  collection);  1692d 
(harassment or abuse); 1692e (false or misleading representations); 1692e(5) (threat to take 
action), and; 1692f (unfair practices). (See Am. Compl. ¶¶ 21, 42, 45–46.) Defendant QLF 

argues that the alleged violations of §§ 1692d, 1692e, 1692e(5), and 1692f are each 
predicated on alleged violations of the automatic stay provision of the Bankruptcy Code, 
and the Bankruptcy Code provides the exclusive remedy for such violations. QLF further 
argues that the Amended Complaint fails to allege facts sufficient to state a claim under § 
1692c. The Court considers each argument in turn.                         

         1.   FDCPA Claims Predicated on an Automatic Stay Violation     
    QLF argues that the U.S. Bankruptcy Code provides the sole remedy for violations 
of its provisions, and that the Court should accordingly dismiss Ms. Nelson’s FDCPA 
claims predicated on any such violations. QLF further argues that the Supreme Court’s 
decision in Midland Funding, LLC v. Johnson, 

 (2017), and its progeny should 
control the outcome in this case. Ms. Nelson responds that Midland Funding’s holding is 

inapplicable to the violations alleged in the Amended Complaint, and that QLF’s disregard 
for the Bankruptcy Code in the context of debt collection activities resulted in substantial 
violations of the FDCPA. The parties agree that Ms. Nelson’s FDCPA claims under 
§§ 1692d, 1692e, 1692e(5), and 1692f are predicated on her allegation that the underlying 
conduct violated the automatic stay provision of the Bankruptcy Code.     

              a.   Relevant Caselaw                                      
    The Court first considers whether Midland Funding, or any other decision by the 
U.S. Supreme Court or the Eighth Circuit Court of Appeals, resolves this issue. 
    In Midland Funding, the respondent, Johnson, had filed for personal bankruptcy in 
federal bankruptcy court, and two months later the petitioner, Midland Funding, LLC, filed 
a “proof of claim” as a part of the proceedings. 

. The proof of claim was 

considered stale, because the original charge for the debt Johnson was alleged to owe was 
well  outside of  the  relevant  statute  of  limitations.  The  bankruptcy  court  accordingly 
disallowed the claim. Johnson subsequently brought a lawsuit against Midland Funding, 
LLC, alleging that by filing a stale proof of claim, it had violated the FDCPA. The Eleventh 
Circuit held that the filing of a stale proof of claim in a bankruptcy proceeding could qualify 

as “false,” “deceptive,” “misleading,” “unconscionable,” or “unfair” conduct within the 
meaning of the FDCPA and, therefore, was an actionable claim. Johnson v. Midland 
Funding, LLC, 

 (11th Cir. 2016), rev’d and remanded, 

 
(2017), and vacated, 

 (11th Cir. 2017).                      
    The Supreme Court reversed the Eleventh Circuit, holding that the filing of a stale 
proof of claim as alleged is not actionable as an FDCPA violation. 

. 

Importantly, however, Justice Sotomayor noted in dissent that “the Court does not hold 
that the Bankruptcy Code altogether displaces the FDCPA, leaving it with no role to play 
in bankruptcy proceedings . . . Nor does the majority take a position on whether a debt 
collector violates the FDCPA by filing suit in an ordinary court to collect a debt it knows 
is time barred. Instead, the majority concludes, even assuming that such a practice would 

violate the FDCPA, a debt collector does not violate the Act by doing the same thing in 
bankruptcy proceedings.” 

 at 242–43 (Sotomayor, J. dissenting).        
    The Court finds that this matter is readily distinguishable from Midland Funding. 
Ms. Nelson alleges that QLF violated the automatic stay provision of the Bankruptcy Code 
by continuing to pursue a collection action in state civil court. (See Am. Compl. ¶¶ 19, 39.) 

Nothing in the Midland Funding opinion suggests that activity in a state court collection 
action, which violates the U.S. Bankruptcy Code’s automatic stay provision, could not 
form the basis of an FDCPA claim.                                         
    The Eighth Circuit, in an opinion cited approvingly by the Supreme Court in 
Midland Funding, has similarly observed that “[u]nlike defendants facing a collection 

lawsuit, a bankruptcy debtor is aided by trustees who owe fiduciary duties,” and that “these 
protections against harassment and deception satisfy the relevant concerns of the FDCPA.” 
Nelson v. Midland Credit Management, Inc., 

 (8th Cir. 2016); see 
Midland Funding, 

 (citing Nelson and agreeing with its holding that FDCPA 
liability does not extend to a stale proof of claim filed in a bankruptcy proceeding). Neither 
the Supreme Court, nor the Eighth Circuit, however, has decided whether FDCPA liability 

may attach to conduct outside of bankruptcy proceedings, in an environment in which the 
bankruptcy debtor does not enjoy such protections, that is alleged to violate the Bankruptcy 
Code’s automatic stay provision.                                          
    In the absence of binding precedent, the Court considers the decisions of other 
courts around the country. There is no agreement among the federal circuits as to how to 

resolve this issue. The Second and Ninth Circuits have ruled that when remedies are 
available within the Bankruptcy Code itself for violations of the Code, those remedies 
preclude plaintiffs from seeking to recover under the FDCPA. See Garfield v. Ocwen Loan 
Servicing, LLC, 

 (2d Cir. 2016) (because the Bankruptcy Code provides a cause 
of action for automatic stay violations, there can be no actionable FDCPA claim for the 

same violation); Maniken v. Peters & Freedman, L.L.P., 

 (9th Cir. 2020) 
(FDCPA claims cannot be predicated upon a violation of the Bankruptcy Code under Ninth 
Circuit precedent). The Third and Seventh Circuits, on the other hand, have adopted Ms. 
Nelson’s position, that automatic stay violations may be subject to FDCPA liability. See 
Simon v. FIA Card Services, N.A., 

 (3d Cir. 2013); Randolph v. IMBS, Inc., 

 (7th Cir. 2004).                                             

    In Randolph, the Seventh Circuit held that a “demand for immediate payment while 
a debtor is in bankruptcy” violates the FDCPA “in the sense that it asserts that money is 
due, although, because of the automatic stay (

) . . . it is not.” 

. Judge Easterbrook, writing for the Randolph court, analyzed several provisions of the 
two statutes to determine whether any irreconcilable conflict existed between the two. 
Finding none, the court reasoned that because “[i]t is easy to enforce both statutes, and any 

debt collector can comply with both simultaneously,” the FDCPA claim should be allowed 
to proceed. 

. In Simon, the Third Circuit followed the Seventh Circuit’s lead. 
Citing  Randolph,  the  Simon  court  held  that  when  “FDCPA  claims  arise  from 
communications a debt collector sends a bankruptcy debtor in a pending bankruptcy 
proceeding, and the communications are alleged to violate the Bankruptcy Code or Rules, 

there is no categorical preclusion of the FDCPA claims.” 

. 
    The district courts within the Eighth Circuit facing this issue have tended to follow 
the reasoning of the Seventh and Third Circuits, that is, that the Bankruptcy Code does not 
preclude  FDCPA  liability  for  automatic  stay  violations.  See  Clark  v.  Brumbaugh  & 
Quandahl, P.C., LLO, 

, 920–21 (D. Neb. 2010) (noting that “at least 

three cases from other district courts within the Eighth Circuit” had previously determined 
that the Bankruptcy Code does not bar consumers from bringing an FDCPA action for 
alleged violations of the bankruptcy automatic stay provision, and adopting the rationale 
of those cases); Drnavich v. Cavalry Portfolio Service, LLC, No. 05-cv-1022 (PAM/RLE), 

 (D. Minn. Sept. 29, 2005) (adopting the Seventh Circuit’s analysis in 
Randolph). However, at least one court within this district has held that the Bankruptcy 

Code  does  preclude  additional recovery  for  automatic stay  violations,  albeit  under  a 
different statute. Zimmerman v. Bellows, 

 (D. Minn. 2013) (Kyle, J.) 
(finding that a plaintiff cannot recover under 

 for alleged automatic stay 
violations).                                                              
              b.   Analysis                                              
    In the absence of binding precedent, the Court analyzes the statutes themselves to 

determine  whether Congress  meant for  the  Bankruptcy  Code  to  supply  the  sole  and 
exclusive remedy for an automatic stay violation. In doing so, it applies all the ordinary 
rules and canons of statutory interpretation.                             
    At the outset, the Court notes that the proper analytical framework is not one of 
preemption  (whether  the  Bankruptcy  Code  preempts  or  precludes  application  of  the 

FDCPA), but rather one of repeal by implication. The doctrine of preemption stems from 
the Supremacy Clause, and is not implicated in this case. See Murphy v. Nat’l Collegiate 
Athletic Ass’n, 

 (2018). “One federal statute does not preempt another. 
When two federal statutes address the same subject in different ways, the right question is 
whether one implicitly repeals the other—and repeal by implication is a rare bird indeed.” 

Randolph, 

; see also Swinomish Indian Tribal Community v. BNSF Railway 
Co., 

 (9th Cir. 2020) (“The term “preempt,” when applied to a conflict 
between federal laws, is a bit of a misnomer . . . When a case involves the interplay between 
two statutory schemes created by Congress for different reasons and at different times, we 
typically ask whether the later statute repeals the prior one.”); In re American River Transp. 
Co., 

 (8th Cir. 2015) (“A new statute will not be read as wholly or even 

partially amending a prior one unless there exists a ‘positive repugnancy’ between the 
provisions of the new and those of the old that cannot be reconciled . . . The rule is to give 
effect to both if possible.”); Nat’l Ass’n of Home Builders v. Defs of Wildlife, 

  (2007)  (“We  will  not  infer  a  statutory  repeal  unless  the  later  statute  expressly 
contradicts the original act, or unless such a construction is absolutely necessary in order 
that the words of the later statute shall have any meaning at all.”) (cleaned up). 

    “The repeal of statutes by implication is not favored.” In re American River Transp. 
Co., 

. There are two ways for a court to find that a statute has been repealed, 
in  whole  or  in  part,  by  implication.  There  either  must  be  (1)  a  “clearly  expressed 
congressional intention” to replace the earlier statute with the later one, or (2) provisions 
in the two statutes that are in irreconcilable conflict, in which case “the later act to the 

extent of the conflict constitutes an implied repeal of the earlier one.” 

 (citing cases).1 
                   i.   Congressional Intent                             
    “Congressional intent is discerned primarily from the statutory text.” Thigulla v. 
Jaddou, 

 (8th Cir. 2024) (quoting CTS Corp. v. Waldburger, 

, 
12 (2014)). The text of the Bankruptcy Code (Title 11 of the U.S. Code) does not discuss 

                   –––––––––––––––––––––––––––––––––––––––––––––––––     
1    The current Bankruptcy Code was enacted in § 101 of the Bankruptcy Reform Act 
of 1978 (

), whereas the FDCPA was passed as part of the Consumer 
Credit Protection Act Amendment in 1977 (

). Thus, although both 
statutes were passed by the 95th United States Congress, and both have undergone multiple 
amendments since their passage, the FDCPA is the earlier statute for purposes of the repeal 
by implication analysis.                                                  
its effect on the scope of the FDCPA. There is no mention of other federal laws in 

 (“Applicability of chapters”), or in § 362(k)(1) (remedies for the willful violation of 

the automatic stay provision). In 

(k) (discussing the bankruptcy court’s 
contempt power and penalties for those who negligently or fraudulently prepare petitions), 
the Bankruptcy Code states that “[n]othing in this section shall be construed to permit 
activities that are otherwise prohibited by law, including rules and laws that prohibit the 
unauthorized practice of law.”                                            
    A plain reading of the text of Title 11 thus does not support the theory that Congress 

intended for the Bankruptcy Code to repeal and replace the FDCPA. If anything, § 110(k) 
suggests that Congress contemplated and accepted a certain degree of overlap between the 
Bankruptcy Code and other pre-existing consumer protection laws.          
    Not finding an “explicit statement by Congress” in the text of the Bankruptcy Code, 
the Court looks for evidence of Congressional intent in the legislative history of the statute. 

Scalia v. Red Lake Nation Fisheries, Inc., 

 (8th Cir. 2020). In this case, 
the legislative history is further evidence against a repeal by implication. Both statutes were 
passed by the same Congress, and nothing in the history suggests that the drafters of the 
Bankruptcy Reform Act intended it to limit the reach of the FDCPA passed in their 
previous session. To the contrary, at least one group of legislators held the view that the 

Bankruptcy  Reform  Act  was  not  intended  to  be  a  consumer  protection  law.  “The 
bankruptcy  rate  among  consumers  has  risen  accordingly,  but  without  the  required 
provisions in the Bankruptcy Act to protect those who need bankruptcy relief. This bill 
makes bankruptcy a more effective remedy for the unfortunate consumer debtor. This is 
not primarily a debtor’s bill, however.” H.R. Rep. No. 95-595, at 5 (1977). 

    Further, in the more than 45 years that the two statutes have co-existed, Congress 
has made several rounds of amendments to each. The FDCPA most notably was amended 
by the Fair Debt Collection Practices Act Amendment in 1986 (

) and the 
Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010 (

).2 
The Bankruptcy Code was most notably amended by the Bankruptcy Reform Act of 1994 
(

) and the Bankruptcy Abuse Prevention and Consumer Protection Act in 

2005 (

).3 In no amendment has Congress explicitly or clearly stated an intent 
for either law to limit the other. The inevitable conclusion is that Congress developed the 
statutes to address different problems, and that the potential for the schemes to overlap was 
not a concern.                                                            
    Finally, the Court considers whether the result of enforcing both statutes would lead 

to a result seemingly at odds with the congressional intent behind them. See Watt v. Alaska, 

, 266–67 (1981) (where two statutes apply to the same facts, courts should 
consider “the circumstances of the enactment of particular legislation” when determining 
whether the later statute impliedly repeals the former). While Congress set out in the 

                   –––––––––––––––––––––––––––––––––––––––––––––––––     
2    15 U.S.C. § 1692e was also amended by 

 Stat. 3009-425. 
3    The following acts have also amended 

 since the passage of the 
Bankruptcy Reform Act: 

 Stat. 235; 

 Stat. 1911; 

title II, 100 Stat. 3115–16; 

 Stat. 267, 269; Pub. L. 101-
508, 

-28; 

 Stat. 2681–886; 

 Stat. 
1706–07; 

 Stat. 2696; 

 Stat. 3558–59; 

 Stat. 970.                                                   
FDCPA to eliminate abusive debt collection practices that were plaguing consumers (

), the Bankruptcy Code was “not primarily a debtor’s bill” (Report No. 95-

595), and instead creates and maintains “the delicate balance of a debtor’s protections and 
obligations.” Midland Funding, 581 U.S. at 233–34. As discussed further infra, not every 
violation of the automatic stay provision can be remedied through the Bankruptcy Code. 
For example, a creditor who pursues a collection action in state court while a stay is in 
place could conceivably do so without willfully violating the Bankruptcy Code. See 

(k) (permitting recovery for “willful” violations). In such a scenario, the debt 

collector might exert pressure on the debtor to pay their debt outside of the oversight and 
protections of the bankruptcy court, and may cause the debtor to incur additional legal fees 
or risk potentially severe consequences. In such a case, the debtor has no remedy under the 
Bankruptcy Code itself. This is exactly the kind of scenario that a strict liability consumer 
protection statute like the FDCPA is designed to remedy. Thus, recognizing FDCPA 

liability for automatic stay violations furthers, rather than undermines, the goals of the 
Bankruptcy Code by disincentivizing collection activity outside of the framework  of 
bankruptcy policies and procedures.                                       
    In the absence of clear congressional intent that the Bankruptcy Code has implicitly 
repealed the FDCPA, the Court must determine whether the provisions of both statutes at 

issue here are in direct and irreconcilable conflict such that both cannot be enforced in this 
case. See Simon, 

 (“Finding no broad categorical preclusion, we turn to the 
narrower question of whether the Simons’ specific allegations present such a conflict with 
the Bankruptcy Code and Rules as to preclude their FDCPA claims.”).       
                   ii.  Irreconcilable Conflict                          
    The mere existence of overlapping prohibitions or protections does not rise to an 

irreconcilable conflict under the law. United States v. Davis, 

 (8th Cir. 
1992) (finding that the Wiretap Act did not implicitly repeal the Communications Act of 
1934,  even  though  both  statutes  prohibit  some  of  the  same  conduct,  and  permitting 
prosecution under both statutes).                                         
    The question is whether the provisions of the FDCPA (

 et seq.) 
relevant  to  the  claims  here  conflict  directly  and  irreconcilably  with  the  bankruptcy 

automatic stay provision (

). In Randolph, Judge Easterbrook carefully laid 
out the differences and similarities between the provisions at issue in reaching his ruling: 
                     Bankruptcy (§ 362)    FDCPA (§ 1692 et seq.)        
Who                  Anyone                Debt collector only           
Scienter             Willfulness           Strict liability              
                                           (§ 1692e(2)(A))               
Defense              None                  Bona fide error plus due      
                                           care (§ 1692k(c)), or         
                                           reliance on FTC opinion       
                                           (§ 1692k(e))                  
Statutory Damages    None                  $1,000 maximum                
                                           (§ 1692k(a)(2)(A))            
Compensatory Damages  Yes                  Yes (§ 1692k(a)(1))           
Punitive Damages     Yes                   No                            
Cap on Class Recovery  No                  Yes (§ 1692k(a)(2)(B)(ii))    
Maximum Recovery     No                    Yes, $500,000 or 1% of        
                                           net worth, whichever is less  
                                           (§ 1692k(a)(2)(B)(ii))        
Attorneys’ fees to debtor  Yes4            Yes (§ 1692k(a)(3))           
Attorneys’ fees to   No                    Yes (§ 1692k(a)(3))           
creditor                                                                 
Statute of limitations  None (laches defense only)  One year (§ 1692k(d)) 

.                                                          
    The two statutes are clearly both different and overlapping: “the [Bankruptcy] Code 
covers all persons, not just debt collectors, and all activities in bankruptcy; the FDCPA 
covers all activities by debt collectors, not just those affecting debtors in bankruptcy.” 

 
The most relevant area of difference, for purposes of the issues in this case, is the scienter 
element. QLF argues that because the FDCPA is a strict liability statute, allowing an 
FDCPA claim would create a backdoor to proving an automatic stay violation without 
meeting the Bankruptcy Code’s willfulness requirement. Because such an outcome would 
contravene § 362, QLF asserts there is an irreconcilable conflict between these provisions 

of the statutes.                                                          
    The argument that permitting an FDCPA claim to proceed would create a backdoor 
for easier recovery from automatic stay violations is unavailing. As Judge Easterbrook 



                   –––––––––––––––––––––––––––––––––––––––––––––––––     
4    The Randolph court wrote “no” for whether § 362 allows for attorneys’ fees. 

; but see 

(k)(1) (an injured party may recover costs and 
attorneys’ fees upon a showing of a willful violation).                   
noted, “they are simply different rules, with different requirements of proof and different 
remedies.” Randolph, 

.                                     

    Most  importantly,  it  is  possible  for  debt  collectors  to  comply  with  both  the 
Bankruptcy Code and the relevant provisions of the FDCPA, and QLF does not argue 
otherwise. The specific allegations at issue here are violations of 15 U.S.C. § 1692d 
(harassment or abuse); § 1692e (false or misleading representations); § 1692e(5) (the threat 
to take action that cannot legally be taken); and § 1692f (unfair practices). These provisions 
of the FDCPA are not irreconcilable with the Bankruptcy Code. As explained by the 

Randolph court, “whether overlapping and not entirely congruent remedial systems can 
coexist is a question with a long history at the Supreme Court, and an established answer: 
yes.” 

 (citing cases).                                     
    The Court finds that Congress has never clearly expressed, nor even implied, an 
intent to repeal the FDCPA with the Bankruptcy Code. The Court further finds that where, 

as here, a plaintiff alleges that a debt collector pursued a state collection action in violation 
of the automatic stay provision, FDCPA enforcement does not irreconcilably conflict with 
enforcement of the Bankruptcy Code. Because debt collectors can comply with both 
statutes, both must be given effect. See In re American River Transp. Co., 

. 
Because both statutes must be given effect, and the pleading rules permit alternative 

theories  of  liability,  the  Court  denies  QLF’s  motion  to  dismiss  the  FDCPA  claims 
predicated on an automatic stay violation.                                
         2.   FDCPA Claim for Improper Communications                    
    The FDCPA prohibits “communication” with a consumer “in connection with the 
collection of any debt,” if the debt collector “knows the consumer is represented by an 

attorney with respect to such debt and has knowledge of, or can readily ascertain, such 
attorney’s name and address.” 

(a)(2); Ojogwu v. Rodenburg Law Firm, 

 (8th Cir. 2022). To survive a motion to dismiss on this claim, Ms. Nelson 
must plausibly allege that: (1) she was represented by an attorney with respect to the debt; 
(2) the defendant knew she was represented by an attorney with respect to the debt; (3) the 

defendant  communicated  with  her,  and;  (4)  the  defendant  was  not  authorized  to 
communicate with her, either by consent or by a court. Montgomery v. Shermeta, Adams 
& Von Allmen, P.C., 

, 854–55 (W.D. Mich. 2012); also Gattison v. 
Credit Control, LLC, No. 4:23-cv-157, 

, at *2 (E.D. Mo. July 7, 2023); 
see Schmitt v. FMA Alliance, 

 (8th Cir. 2005) (per curium) (a plaintiff 

must allege the defendant’s knowledge of the representation prior to the communication). 
    Ms.  Nelson  alleges  the  following  facts  in  support  of  her  FDCPA  improper 
communication claim:                                                      
      •  “On May 17, 2023, the Court mailed via first class mail a notice to Defendant 
         University notifying it of Plaintiff’s bankruptcy via the Bankruptcy Noticing 

         Center.” (Am. Compl. ¶ 12.)                                     
      •  “On or about June 8, 2023, Plaintiff added Defendant Quigley to Plaintiff’s 
         bankruptcy matter.” (Id. ¶ 35.)                                 
      •  “Defendants then received an email from Plaintiff’s bankruptcy counsel 
         dated June 23, 2023, providing additional information concerning Plaintiff’s 

         bankruptcy.” (Id. ¶ 37.)                                        
      •  “Defendants  knew  or  should  have  known  through  its  bankruptcy  scrub 
         systems or should have known from the communications received from the 
         bankruptcy Court and direct communications from her bankruptcy counsel 
         that Plaintiff was represented by an attorney, specifically her bankruptcy 

         counsel, Walker & Walker Law Office Ltd.” (Id. ¶ 38.)           
      •  “Defendant Quigley’s July 12, 2023, communication to the Dakota County 
         Court referencing the collection lawsuit was sent directly to Plaintiff, in 
         violation of 15 U.S.C. § 1692c, when it knew that Plaintiff was represented 
         by an attorney.” (Id. ¶ 42.)                                    

    QLF asks the Court to consider certain exhibits it submitted as attachments to a 
declaration by Patrick Newman (Newman Decl. [Doc. No. 16]; Second Newman Decl. 
[Doc. No. 51].) Exhibits A–J, L–N, and Q, are available and publicly filed in the state court 
collection action docket. Exhibit O is the email sent by Ms. Nelson’s bankruptcy counsel 
to QLF on June 23, 2023. Exhibit R is the email correspondence between QLF and the 

Dakota County court that is the subject of this claim. The Court considers these exhibits as 
they are either a part of the public record or do not contradict the complaint, and they are 
necessarily embraced by the pleadings. See Glow in One Mini Golf, 

 (8th 
Cir. 2022).                                                               
    QLF argues that the FDCPA improper communications claim should be dismissed 
for two reasons: (1) that Ms. Nelson fails to adequately allege that QLF had notice of 

representation; and (2) that the communication alleged was not “in connection with the 
collection of any debt” within the meaning of the FDCPA.5                 
              a.   Knowledge of Ms. Nelson’s Legal Representation        
    In the Eighth Circuit, a creditor’s actual knowledge of a debtor’s representation 
cannot be imputed to its agent. Reygadas v. DNF Assocs., LLC, 

 (8th 
Cir. 2020); Schmitt, 

. This rule flows from the basic structure of agency 

law, “which dictates that while the knowledge of the agent is imputed to the principal, the 
converse is not true.” Schmitt, 

. Accordingly, in this case, the Court limits 
its analysis to what Ms. Nelson plausibly alleges QLF actually knew with respect to her 
legal representation, without regard to the knowledge of the University.  
    Ms. Nelson alleges that QLF was added to the bankruptcy matter on June 8, 2023, 

and received an email from her bankruptcy counsel on June 23, 2023. (Am. Compl. ¶¶ 35, 
37.) The email was sent from Andrew Walker, managing partner, “on Behalf of Walker 
and Walker Law Offices, PLLC,” on the law firm’s letterhead, and includes Mr. Walker’s 
MN Attorney Registration Number. (Newman Decl. 154–55.) The email identifies Ms. 
Nelson, states that she had filed for bankruptcy, and explains that the automatic stay 

                   –––––––––––––––––––––––––––––––––––––––––––––––––     
5    QLF also argues that Ms. Nelson raised her improper communication claim for the 
first time at oral argument, and that because the issue was not briefed, she waived it and 
the Court should not consider it. A plaintiff is not obligated to defend in briefing claims 
never addressed in a defendants’ motion to dismiss, and does not waive a claim by failing 
to do so. Regardless, the Court has received supplemental briefing from both parties on 
this issue, rendering the question of waiver moot.                        
protection “is effective against all creditors” and prohibits acts including “[a]dvancement 
of court processes to gain or enforce a judgment.” (Id. at 154.) The email askes recipients 

who feel that the notice does not apply to them to “reply to this email immediately or call” 
the firm’s number, and instructs recipients to provide their attorneys’ contact information 
if they are represented in the matter. (Id. at 154–55.)                   
    The Court finds that Ms. Nelson has plausibly alleged that QLF had notice of her 
legal  representation  with  respect  to  the  bankruptcy  action.  In  order  to  satisfy  the 
requirements for a claim under § 1692c(a)(2), that knowledge must be “with respect to the 

very debt about which” QLF communicated with her. Gilbert v. TrueAccord Corp., 

, 667 (N.D. Ill. 2022).                                       
    QLF argues that, as a matter of law, knowledge of Ms. Nelson’s legal representation 
in the bankruptcy proceedings is insufficient to allege knowledge of her representation with 
respect to the debt at issue in her state court collection action. However, courts have 

generally  held that  actual  knowledge  of  active  representation  by  bankruptcy  counsel 
satisfies the knowledge requirements for a § 1692c(a)(2) claim. See Lewis v. Northwest 
Collectors, Inc., No. 15-cv-3671, 

, at *6 (N.D. Ill. Jan. 25, 2017) (notice 
of  bankruptcy  counsel  establishes  knowledge  of  representation  for  §  1962c(a)(2) 
purposes); Mogg v. Jacobs, No. 15-cv-1142, 

, at *3 (S.D. Ill. Mar. 15, 

2016) (finding that pleading notice of a bankruptcy filing and associated representation is 
sufficient for a § 1692c(a)(2) claim to survive a motion to dismiss); Robin v. Miller and 
Steeno, P.C., No. 4:13-cv-2456, 

 at *2 (E.D. Mo. July 29, 2014) 
(imposing FDCPA liability for continuing communication after the defendant was advised 
that the plaintiff had bankruptcy counsel); Thomas v. Boscia, No. 1:08-cv-42, 

, at *5 (S.D. Ind. Aug. 28, 2009) (finding that a collection firm knew the plaintiff 

was represented once it received a bankruptcy filing notice).             
    The  Federal  Trade  Commission  is  authorized  to  enforce  compliance  with  the 
FDCPA, except to the extent that enforcement is specifically committed to another agency 
under the Consumer Financial Protection Act of 2010. 15 U.S.C. § 1692l(a). In 1988, the 
FTC published official commentary interpreting the improper communication provision, 
explaining that “[i]f a debt collector learns that a consumer is represented by an attorney in 

connection with the debt, even if not formally notified of this fact, the debt collector must 
contact only the attorney and must not contact the consumer.” Federal Trade Commission, 
Statements  of  General  Policy  or  Interpretation  Staff  Commentary  on  the  Fair  Debt 
Collection  Practices  Act,  

,  50104  (1988)  (emphasis  added).  The 
commentary continues to explain that, when a consumer informs the debt collector that an 

attorney is retained to represent them on other debts, that debt collector has notice regarding 
the other debts and must deal only with the consumer’s attorney for those debts as well.  
    When  an  individual  commences  bankruptcy  proceedings,  those  proceedings 
generally embrace all monies owed by the debtor. See, e.g., 

 (a bankruptcy 
petition  automatically  stays  all  other  activity  involving  debts  that  arose  prior  to  the 

petition’s filing). As the district court in Mogg noted, pleading notice of such representation 
accordingly satisfies the pleading requirements for a § 1962c(a)(2) claim—there is no 
requirement to plead notice of representation for each specific debt. See 

, 
at *3.                                                                    
    QLF directs the Court to Hubbard v. Nat’l Bond and Collection Assocs., Inc., as 
support for its argument that notice of bankruptcy counsel is insufficient to establish 

knowledge of representation for a specific debt. 

 (D. Del.), aff’d, 

 (3d Cir. 1991). In Hubbard, however, it was undisputed that the debt collector “was 
unaware of the plaintiff’s bankruptcy” and had no actual knowledge of any representation 
at  all.  Id.  at  427.  Here,  however,  it  is  alleged  that  QLF  received  actual  notice  of 
representation with respect to the bankruptcy proceedings approximately three weeks 
before sending the communication at issue.6                               

    The Court finds, under these circumstances, that Ms. Nelson had plausibly alleged 
that QLF knew that she was represented in an ongoing bankruptcy proceeding, and thus 
had knowledge of her representation for purposes of § 1692c(a)(2) with respect to any debt 
encompassed by the bankruptcy proceedings.                                
              b.   Communication in Connection with the Collection of a  
                   Debt                                                  
    QLF  next  argues  that  the  email  sent  to  the  Dakota  County  Court  was  not  a 
communication “in connection with the collection of any debt” within the meaning of 

                   –––––––––––––––––––––––––––––––––––––––––––––––––     
6    The other cases cited by QLF are similarly inapposite. Graziano, Robinson, and 
Goodman, for example, each dealt with situations where a debt collector had knowledge 
of a debtor’s representation for a specific separate and distinct debt. Graziano v. Harrison, 

 (3rd. Cir. 1991), overruled on other grounds, Riccio v. Sentry Credit, 
Inc., 

 (3rd Cir. 2020); Robinson v. Transworld Systems, Inc., 

 (N.D.N.Y. 1995); Goodman v. Southern Credit Recovery, Inc., Nos. 97-cv-2385, 
98-cv-1174, 

, at *9 (E.D. La. Jan. 8, 1999). In Shrestha v. State Credit 
Adjustment Bureau, Inc., 

 (D. Conn. 2000), at a hearing after a demand 
letter was sent by an attorney but before the communication at issue, the “plaintiff appeared 
pro se and told the court he was representing himself.” 

.       
§ 1692c(a)(2). Ms. Nelson counters that because the purpose of the communication was to 
ensure that the collection action would proceed, it was a communication in connection with 

the collection of a debt.                                                 
    The FDCPA defines “communication” as “the conveying of information regarding 
a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). In 
determining whether a communication is in connection with the collection of any debt, the 
Eighth Circuit employs the “animating purpose test.” Heinz v. Carrington Mortgage Servs., 
LLC, 

 (8th Cir. 2021) (citing McIvor v. Credit Control Servs., Inc., 

 (8th Cir. 2014)). “Under this test, for a communication to be in connection 
with the collection of a debt, an animating purpose of the communication must be to induce 
payment by the debtor.” 

 (internal citation omitted).                  
    The animating purpose of a communication is generally a question of fact, and 
Courts must “look at each communication individually” to determine whether it satisfies 

the test. 

 An explicit demand for payment is not required for a communication to satisfy 
the test. Rather, courts consider a number of factors when determining the animating 
purpose of a communication, including the communication’s content and context, and the 
relationship between the parties. Backlund v. Messerli & Kramer, P.A., 

 (D. Minn. 2013); see also Heinz, 3 F.4th at 1112–13; McIvor, 

. 

The Seventh Circuit has observed repeatedly that where the only relationship between the 
parties arose out of the defendant’s ownership of the plaintiff’s debt, the communication is 
more likely to satisfy the animating purpose test. See Gburek v. Litton Loan Servicing LP, 

 (7th Cir. 2010); Ruth v. Triumph Partnerships¸ 

 (7th Cir. 2009). 
    Several courts have held that a “letter that is not itself a collection attempt, but that 
aims to make such an attempt more likely to succeed, satisfies the animating purpose test.” 

Randall v. Paul, 

 (Minn. Ct. App.  2017) (adopting the  Eighth 
Circuit’s animating purpose test) (internal citation omitted); see also Grden v. Leiken 
Ingber & Winters PC, 

 (6th Cir. 2011); Gburek, 

.  
    The communication at issue here is QLF’s July 12, 2023 email to the Dakota County 
Dourt. The email, from Sarah B. Quigley, reads:                           

    This letter is not being submitted to the Court to violate 11 USC 362, but 
    simply to inform the Court that I will not be attending the hearing scheduled 
    by the Court on 6/14/2023 for a date of 7/17/2023 at 9:00 AM due to a 
    conflict, as I am already scheduled to be in Washington County on another 
    matter at that same time.                                            

(Second Newman Decl. at 3.) The subject line of the email states the name and court file 
number for the state collection action, as well as QLF’s internal file number for the case. 
The bottom of the email indicates that Ms. Nelson is copied directly, and includes her full 
name and home address. (Id.)                                              
    The  Court  finds  that  Ms.  Nelson  has  sufficiently  pled  a  communication  in 
connection with the collection of a debt to overcome the motion to dismiss. Several facts, 
as alleged, weigh in favor of finding that the July 12, 2023 email satisfies the Eighth 
Circuit’s animating purpose test. The relationship between Ms. Nelson and QLF is wholly 
defined by her debt to the University. The email itself is a clear reminder of an upcoming 
hearing on the debt collection action, and scheduling the hearing is a necessary part of a 
strategy to induce payment of the debt. As noted by this Court in Ojogwu v. Rodenburg 
Law Firm, No. 19-cv-563 (PJS/TNL), 

 (D. Minn. Nov. 19, 2019), the 
fact  that  this  was  a  court-facing  email  does  not  shield  the  communication  from  the 
§ 1692c(a)(2) inquiry.  

 at *4. Further, this is a case where the plaintiff 

alleges injury and trauma caused by the unlawful continuation of court processes in the 
same collection action, and the email makes no effort to cancel the existing hearing date. 
Considering the context as alleged, Ms. Nelson has plausibly alleged that such voluntary 
communication  to  the  court  about  a  future  hearing  could  be  intended  to  pressure  a 
consumer in a manner that makes collection more likely to succeed. See Randall, 

. Accordingly, the Court denies QLF’s motion to dismiss Ms. Nelson’s 

§ 1692c(a)(2) claim.                                                      
    D.   Reference to Bankruptcy Court                                   
    As an alternative to dismissal under Rules 12(b)(1) and 12(b)(6), the Defendants 
move the Court to refer this matter to the bankruptcy court. The Court’s discretion to refer 
and withdraw the reference from the bankruptcy court is defined by statute: 

    Notwithstanding  the  provisions  of  paragraph  (1)  of  this  subsection,  the 
    district court, with the consent of all the parties to the proceeding, may refer 
    a proceeding related to a case under title 11 to a bankruptcy judge to hear and 
    determine and to enter appropriate orders and judgments, subject to review 
    under section 158 of this title. . .                                 

    The district court may withdraw, in whole or in part, any case or proceeding 
    referred under this section, on its own motion or on timely motion of any 
    party, for cause shown. The district court shall, on timely motion of a party, 
    so withdraw a proceeding if the court determines that resolution of the 
    proceeding requires consideration of both title 11 and other laws of the 
    United  States  regulating  organizations  or  activities  affecting  interstate 
    commerce.                                                            

(c)(2), 157(d). The guiding factors for a court to consider in exercising its 
discretion include: (1) whether the claim is “core” or “non-core,” (2) the efficient use of 
judicial resources, (3) the existence of a jury trial demand, and (4) the prevention of delay. 
Kelley, 

 (citing cases).                                   

    When determining whether to refer a case involving a claim for an automatic stay 
violation to the bankruptcy court, district courts often consider whether good cause likely 
exists for withdrawal of the reference under § 157(d). For example, in Barton, Judge Davis 
declined to refer a case to the bankruptcy court after finding that “good cause exists to 
withdraw the matter” and that the plaintiff “would nonetheless file a motion to withdraw 
the proceeding” after a referral. 

, at * 9. Similarly in DuBois v. Ford 

Motor Credit Co., No. 00-cv-1446 (PAM/SRN), 

, at *1 (D. Minn. Jan. 
19, 2001), Judge Magnuson declined to refer a matter after noting that one of the parties 
had requested that any potential jury trial on related FDCPA claims be held in the district 
court. On the other hand, when the bankruptcy claims are not accompanied by federal non-
bankruptcy claims, district courts generally exercise discretion in favor of referral. See, 

e.g., Reinhardt, 

, at *2 (referring a matter where the only non-bankruptcy 
claim was a state law claim, and distinguishing Barton and DuBois on that basis). 
    Causes of action for automatic stay violations are considered to be core proceedings 
under the Bankruptcy Code. In re Fine, 

 (Bankr. D. Minn. 2002); See In 
re McDougall, 

 (B.A.P. 8th Cir. 2018) (“A core proceeding is one that 

arises only in bankruptcy or involves a right created by federal bankruptcy law.”). Related 
proceedings, which exist outside of the bankruptcy context, are considered to be non-core 
proceedings. In re McDougall, 

. This case involves both core (the alleged 
violation of the automatic stay under § 362) and non-core (the alleged FDCPA violations 
and tort claims) proceedings. That factor is accordingly neutral on the question of referral. 

    The remaining factors weigh in favor of exercising the Court’s discretion not to refer 
the matter to bankruptcy court. Ms. Nelson has alleged claims under federal statutes outside 
of the Bankruptcy Code, which for the reasons stated supra have survived the pleading 
stage of this lawsuit. She has objected to referral, and would presumably move to withdraw 
the case upon a such a referral. She has also made a jury trial demand. The Court finds that 
concerns  for  judicial  efficiency  and  reduction  of  delay  weigh  in  favor  of  retaining 

jurisdiction, and accordingly declines to refer the matter to the bankruptcy court. 
    E.   Supplemental Jurisdiction                                       
    A  federal  district  court  has  supplemental  jurisdiction  over  “all  other  claims,” 
including state tort claims, that are “so related to claims in the action within such original 
jurisdiction that they form part of the same case or controversy under Article III of the 

United States Constitution.” 

(a). There are four circumstances under 
which a federal court may decline to exercise its supplemental jurisdiction authority: (1) if 
the  state  claim  raises  a  novel  or  complex  issue  of  state  law;  (2)  if  the  state  claim 
substantially predominates over the claim or claims over which the district court has 
original jurisdiction; (3) if the district court has dismissed all claims over which it has 

original jurisdiction; or (4) if other compelling reasons for declining jurisdiction exist. 
Wong v. Minnesota Dept. of Human Servs., 

 (8th Cir. 2016); U.S.C. 
§ 1367(c).                                                                
    In  this  case,  both  Defendants  request  that  the  Court  decline  to  exercise  its 
supplemental  jurisdiction  over  Ms.  Nelson’s  Intrusion  Upon  Seclusion  claim  after 

dismissal of the federal claims. For the reasons stated, the Court has ruled that the federal 
claims survive dismissal. Accordingly, the Court will exercise supplemental jurisdiction 
over Count 3, the state law claim of Intrusion Upon Seclusion.            
III.  ORDER                                                               
    Based  on  the  submissions  and  the  entire  file  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that:                                                      

    A.   Defendant Quigley Law Firm, PLLC’s Motion to Dismiss [Doc. No. 28] is 
         DENIED; and                                                     
    B.   Defendant St. Catherine University’s Motion to Dismiss [Doc. No. 32] is 
         DENIED.                                                         

IT IS SO ORDERED.                                                         


Dated: May  21, 2024                 /s/ Susan Richard Nelson             
                                    SUSAN RICHARD NELSON                 
                                    United States District Judge