Nicholson v. Ecast Settlement Corp.
Nicholson v. Ecast Settlement Corp.
Opinion of the Court
Claimant, a purported claim assignee, filed its Claim in Debtor's Chapter 13 bankruptcy. Subsequently, Debtor filed an Objection requesting the Claim be disallowed in its entirety. For the reasons stated below, Debtor's Objection is sustained, and the Claim is disallowed.
I. JURISDICTION
This Court has jurisdiction over this matter pursuant to
*298II. FACTS AND PROCEDURAL HISTORY
On September 12, 2014, Kimberly Nicholson ("Debtor") filed her voluntary Chapter 13 bankruptcy petition. In her Schedule F, Debtor listed Citibank, N.A. ("Citibank") as an unsecured, nonpriority, undisputed creditor in the amount of $ 3,821.00 for a revolving consumer credit account with the account number having the last four digits of 1529.
On January 20, 2015, eCAST Settlement Corporation ("Claimant") filed Proof of Claim No. 5 ("Claim"). It asserts a claim of $ 3,937.42 for a credit card account which is identified by the last four digits of the account number, 1529. Additionally, attached to the Claim are a Statement of Claim ("Statement of Claim"), a Bill of Sale and Assignment between Claimant and Citibank ("Bill of Sale and Assignment"), and a pre-petition account statement ("Account Statement"), all of which allegedly provide that Citibank assigned the account underlying the Claim to Claimant.
On October 22, 2018, Debtor filed her Objection to the Claim ("Objection"). In her Objection, Debtor disputes that Citibank assigned her account to Claimant and alleges a lack of documentation for such an assignment. On that same day, Debtor sent a letter, pursuant to Federal Rule of Bankruptcy Procedure ("Rule") 3001(c)(3)(B), requesting Claimant produce additional information evidencing the account's underlying contract and assignment, but, allegedly, Claimant's response failed to produce the requested information. Due to this failure, Debtor argues that the Claim should be disallowed pursuant to
On November 21, 2018, Claimant filed its Answer ("Answer"). The Answer contains multiple arguments that the Claim should be allowed. Additionally, Claimant attached a form Affidavit ("Affidavit") signed by an employee of Citibank which states that "the account ending in 1529 was sold to eCAST Settlement Corporation on or about 10/30/2014."
On December 11, 2018, a hearing was held on the Objection to the Claim ("December 11 Hearing"). At the December 11 Hearing, Claimant attempted to introduce the Affidavit into evidence to which Debtor objected arguing hearsay. Without ruling on this hearsay objection, Judge Thomas, who was then presiding over this case, set a briefing schedule and took the matter under advisement.
On January 1, 2019, Claimant filed its Brief in Support of its Answer ("Claimant's Brief"). On that same day, Debtor filed her Brief in Support of her Objection ("Debtor's Brief").
On February 13, 2019, this case was reassigned to me due to the untimely passing of Judge John J. Thomas. On March 13, 2019, the parties filed a Joint Statement for the Matter to be Decided Based on the Existing Record. The Objection is now ripe for decision.
III. DISCUSSION
In her Objection, Debtor alleges that Claimant never acquired the right to collect any debt Debtor owed to Citibank, and therefore, the Claim should be disallowed pursuant to § 502(b)(1) of the Bankruptcy Code and Pennsylvania state law. Debtor's Obj. to Proof of Claim No. 5 at 1-2, ECF
*299No. 78. In support of her assertion, Debtor provides that she sent Claimant a Rule 3001(c)(3)(B) request demanding that Claimant provide her with the account agreement underlying the Claim and the purported assignment transferring the specific account to Claimant.
Allowance or disallowance of a proof of claim is governed by § 502 and Rule 3001. In re Foy ,
The burden of proof for claims brought in the bankruptcy court under11 U.S.C.A. § 502 (a) rests on different parties at different times. Initially, the claimant must allege facts sufficient to support the claim. If the averments in his filed claim meet this standard of sufficiency, it is "prima facie " valid. In re Holm ,931 F.2d 620 , 623 (9th Cir. 1991) (quoting 3 L. King, Collier on Bankruptcy § 502.02, at 502-22 (15th ed. 1991)). In other words, a claim that alleges facts sufficient to support a legal liability to the claimant satisfies the claimant's initial obligation to go forward. The burden of going forward then shifts to the objector to produce evidence sufficient to negate the prima facie validity of the filed claim. It is often said that the objector must produce evidence equal in force to the prima facie case.Id. ; see In re Windsor Communications Group, Inc. ,45 B.R. 770 , 773 (Bankr. E.D. Pa. 1985). In practice, the objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim's legal sufficiency. If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re WHET, Inc. ,33 B.R. 424 , 437 (Bankr. D. Mass. 1983). The burden of persuasion is always on the claimant. Holm ,931 F.2d at 623 (quoting Collier § 502.02, at 502-22); Windsor Communications ,45 B.R. at 773 .
In re Allegheny Int'l, Inc. ,
*300A. The Claim is Prima Facie Valid
As stated above, the claimant bears the initial burden of proving the prima facie validity of its claim. In re Allegheny Int'l, Inc. ,
B. Rule 3001(c), § 502(b), and State Law
The burden now shifts to Debtor to produce evidence sufficient to negate the prima facie validity of the Claim. To do so, Debtor argues that Claimant's failure to satisfy the requirements under Rule 3001(c)(3)(B) and Rule 3001(c)(1), coupled with Debtor's testimony at the December 11 Hearing, negates the prima facie validity of the Claim and therefore disallows the Claim in its entirety unless Claimant can meet its ultimate burden. Debtor's Br. in Supp. of Debtor's Obj. to Proof of Claim No. 5 at 4-6, ECF No. 86; see also In re Snedeker ,
1. Rule 3001(c)(3)(B) and Rule 3001(c)(1)
Rule 3001(c)(3)(B) provides:
(B) On written request by a party in interest, the holder of a claim based on an open-end or revolving consumer credit agreement shall, within 30 days after the request is sent, provide the requesting party a copy of the writing specified in paragraph (1) of this subdivision.
Rule 3001(c)(3)(B) allows a party in interest to request, from the claimant, a copy of the writing specified in Rule 3001(c)(1) within thirty days after the request is sent. Rule 3001(c)(1) provides:
(C) Supporting Information.
(1) Claim based on a writing.
Except for a claim governed by paragraph (3) of this subdivision, when a claim, or an interest in property of the debtor securing the claim, is based on a writing, a copy of the writing shall be filed with the proof of claim. If the writing has been lost or destroyed, a statement of the circumstances of the loss or destruction shall be filed with the claim.3
"The writing specified in Rule 3001(c)(1) is the writing on which the claim is based, which, in the context of Rule 3001(c)(3), would be the underlying open-end or revolving consumer credit agreement." In re Isherwood ,
On October 22, 2018, and pursuant to Rule 3001(c)(3)(B), Debtor sent a letter to Claimant requesting the original signed cardholder agreement between Debtor and Citibank as well as the assignment transferring Debtor's specific account from Citibank to Claimant. Br. in Supp. of Resp. to Debtor's Obj. to Proof of Claim No. 5 at 11, ECF No. 85. While Claimant did respond to this request within thirty days, Claimant was unable to provide Debtor's cardholder agreement with Citibank. Id. at 11-12. Additionally, in its Answer, and at the December 11 Hearing, Claimant attempted to introduce into evidence the Affidavit signed by a document control officer at Citibank which states that Citibank sold the Debtor's specific account to Claimant. See Resp. to Debtor's Obj. to *301Proof of Claim No. 5, Exhibit A, ECF No. 79. However, Debtor objected to the admission of this evidence as hearsay at the December 11 Hearing and in Debtor's Brief. See Debtor's Br. in Supp. of Debtor's Obj. to Proof of Claim No. 5 at 6, ECF No. 86.
The Federal Rules of Evidence apply to bankruptcy proceedings. In re Il Nam Chang ,
Without Citibank's testimony, the information in the Affidavit and Citibank's alleged statements are inadmissible hearsay because they are statements of a non-testifying declarant which are being offered to prove the truth of the matter asserted. Therefore, this information can be given no evidentiary effect. Because sanctions may play an important role in deciding whether or not I should disallow the Claim, I will now turn my attention to Rule 3001(c)(2)(D).
2. Rule 3001(c)(2)(D)
While it is undisputed that Claimant did respond to Debtor's Rule 3001(c)(3)(B) request, it also appears that Claimant failed to comply, at least partially, with Rule 3001(c)(1). Rule 3001(c)(2)(D) addresses the imposition of sanctions based on a claimant's failure to provide information required under Rule 3001(c). In re Isherwood ,
(2) Additional requirements in an individual debtor case: sanctions for failure to comply.
In a case in which the debtor is an individual:
* * *
(D) If the holder of a claim fails to provide any information required by this subdivision (c), the court may, after notice and hearing, take either or both of the following actions:
(i) preclude the holder from presenting the omitted information, in any form, as evidence in any contested matter or adversary proceeding in the case, unless the court determines that the failure was substantially justified or is harmless; or *302(ii) award other appropriate relief, including reasonable expenses and attorney's fees caused by the failure.
The inclusion of the word "may" grants me discretion in determining whether or not to impose one of two types of sanctions provided in Rule 3001(c)(2)(D). See In re Goeller ,
a. Rule 3001(c)(2)(D)(ii)
Pursuant to Rule 3001(c)(2)(D)(ii), Debtor requests I grant her reasonable attorney's fees in the amount of $ 1,000.00 as a remedy for Claimant's failure to provide the information required by Rule 3001(c)(1). Debtor's Br. in Supp. of Debtor's Obj. to Proof of Claim No. 5 at 6-8, ECF No. 86. While I acknowledge that Rule 3001(c)(2)(D)(ii) does grant me discretion in granting such a remedy, I also recognize that such a request was denied in In re Snedeker as an inappropriate sanction.
b. Rule 3001(c)(2)(D)(i)
Pursuant to Rule 3001(c)(2)(D)(i), Debtor requests I preclude Claimant from presenting any form of evidence related to Claimant's failure to provide the information requested in Debtor's Rule 3001(c)(3)(B) request. In support, Debtor again cites In re Snedeker where Judge Thomas imposed Rule 3001(c)(2)(D)(i) to prevent a claimant from presenting omitted information, thereby supporting his ultimate holding which disallowed the claim.
I will now analyze my findings in unison with a § 502(b)(1) analysis to determine if the Claimant satisfied its burden as to the validity of the Claim, by a preponderance of the evidence.
3.
Debtor alleges that the Claim should be disallowed pursuant to § 502(b)(1). Section 502(b)(1) provides:
(b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that--
(1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured;
To determine the allowance of a proof of claim under § 502(b)(1), courts often look to state law.
"[C]reditors' entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtors' obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code. That principle requires bankruptcy courts to consult state law in determining the validity of most claims."
Travelers Cas. & Sur. Co. of Am. v. Pacific Gas & Elec. Co. ,
Pennsylvania is a fact-pleading state. Lerner v. Lerner ,
When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.
Similar to Rule 3001(c)(1), Pa.R.C.P. 1019(i) requires that, if a claim is based on a writing, the original writing, or an explanation of the writing's absence, needs to be attached to the filing.
Where there is no binding state court precedent on an issue, it is the *304responsibility of a federal court to predict how it believes the highest state court would rule on a particular issue. In re McElwee ,
In In re Mayne , Judge Thomas overruled a debtor's objections to claim because the debtor did not satisfy her burden in refuting the claim.
In In re Snedeker , Judge Thomas disallowed a claim because the claimant had not satisfied its burden of persuasion.
*305In addition to this evidence, Judge Thomas found persuasive the claimant's failure to provide, or explain the absence of, the original cardholder agreement after the court's request and the debtor's Rule 3001(c)(3)(B) request to do so. Id. at *4. Even though the facts of Mayne and Snedeker were somewhat similar, it was the additional evidence provided by the debtor and the claimant's failure to satisfy its ultimate burden which led Judge Thomas to hold differently in Snedeker .
As provided in In re Allegheny Int'l, Inc. , the initial burden of proof for claims rests with the claimant.
The burden going forward then "shifts to the objector to produce evidence sufficient to negate the prima facie validity of the filed claim." In re Allegheny Int'l, Inc. ,
The burden then "reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. The burden of persuasion is always on the claimant. "
4. Claimant's Alternative Theories of Recovery Under Pennsylvania State Law
Claimant's Brief, in threadbare fashion, appears to argue that the Claim can be sustained under three different state law theories of recovery. See Br. in Supp. of Resp. to Debtor's Obj. to Proof of Claim No. 5 at 10, ECF No. 85. Those theories are: (1) account stated, (2) unjust enrichment, and (3) promissory estoppel.
a. Account Stated
An account stated is an "account in writing, examined and accepted by both parties. which acceptance need not be expressly so, but may be implied from the circumstances." Robbins v. Weinstein ,
The facts of this case do not support an account stated theory of recovery in favor of Claimant.
b. Unjust Enrichment
Under Pennsylvania law, the elements of unjust enrichment are as follows:
(1) benefits conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.
Sovereign Bank v. BJ's Wholesale Club, Inc. ,
*307The facts of this case do not support an unjust enrichment theory of recovery in favor of Claimant. Claimant failed to state how Debtor was unjustly enriched or in what amount. Claimant didn't even go through an unjust enrichment analysis using the facts of this case.
c. Promissory Estoppel
To make a claim for promissory estoppel under Pennsylvania law,
the aggrieved party must show that 1) the promisor made a promise that he should have reasonably expected to induce action or forbearance on the part of the promisee; 2) the promisee actually took action or refrained from taking action in reliance on the promise; and 3) injustice can be avoided only by enforcing the promise.
Edwards v. Wyatt ,
The facts of this case do not support a promissory estoppel theory of recovery in favor of Claimant. Again, Claimant has made no attempt to explain how the facts of this case apply to a promissory estoppel theory of recovery.
IV. CONCLUSION
In sum, I find that Claimant has not met its ultimate burden, and therefore, the Claim is disallowed in its entirety pursuant to § 502(b)(1) and Pennsylvania state law. Judgment will be entered consistent with this Opinion.
Unless otherwise noted, all future statutory references are to the Bankruptcy Code,
It should be noted that, as provided in the first sentence, Rule 3001(c)(1) only applies to claims governed by Rule 3001(c)(3) if a request is made pursuant to Rule 3001(c)(3)(B). Because it was undisputed by either party that this Claim was based on an open-end or revolving consumer credit agreement (i.e., a credit card agreement), Debtor's Rule 3001(c)(3)(B) request was necessary for Rule 3001(c)(1) to apply in this case.
See 11 Norton Bankr. L. & Prac. 3d, Fed. R. Bankr. P. 3001, Advisory Committee Note (2011) ("Failure to provide the required information does not itself constitute a ground for disallowance of a claim. See § 502(b) of the Code."); In re Ollis ,
See generally Capital One Bank (USA) NA v. Clevenstine ,
Br. in Supp. of Resp. to Debtor's Obj. to Proof of Claim No. 5 at 10 n.2, ECF No. 85 (citing Citibank (S. Dakota) N.A. v. Ambrose ,
See Br. in Supp. of Resp. to Debtor's Obj. to Proof of Claim No. 5 at 10 & n.3, ECF No. 85.
See Br. in Supp. of Resp. to Debtor's Obj. to Proof of Claim No. 5 at 10 & n.4, ECF No. 85.
Reference
- Full Case Name
- In re: Kimberly Ann NICHOLSON, Debtor(s) v. ECAST SETTLEMENT CORPORATION, assignee of Citibank, N.A., Creditor(s)
- Cited By
- 2 cases
- Status
- Published