4.7 BANKRUPTCY CASES
4.701 Applicability of the FDCPA in Bankruptcy Cases.
There is a split in the Circuit Courts as to whether the FDCPA applies in bankruptcy cases. The Ninth Circuit has held that a FDCPA claim for violation of the post-discharge injunction was "precluded" by the Bankruptcy Code. 358 The Seventh Circuit has held that "the Bankruptcy Code of 1986 does not work an implied repeal of the FDCPA." 359 The Seventh Circuit had previously held that issue preclusion applies to proofs of claim filed in bankruptcy courts, "because the FDCPA is an improper vehicle for challenging the amount of a debt established by the bankruptcy court." 360
4.702 Proofs of Claim for Time-Barred Debts.
In 2017, the Supreme Court resolved a split among the circuits by holding that the filing of a proof of claim in a bankruptcy proceeding that is obviously time-barred is not a false, deceptive, misleading, unfair, or unconscionable debt collection practice within the meaning of the FDCPA. 361
4.703 Property of the Estate.
The cause of action for a pre-petition violation of the FDCPA would be property of the bankruptcy estate in a bankruptcy case under Chapter 7. 362
4.704 Standing of the Trustee or Debtor in Possession.
In bankruptcy cases under Chapter 11 or Chapter 13, the trustee or debtor in possession has standing to bring the cause of action for violation of the FDCPA committed either pre-petition or post-petition. 363
4.705 Jurisdiction.
In bankruptcy cases, actions to enforce the FDCPA are not "core" proceedings under 28 U.S.C. § 157(b)(2) but are "related" proceedings under 28 U.S.C. § 157(c)(1). 364
4.706 Statute of Limitations.
11 U.S.C. § 108 provides that the trustee may commence an action before the end of the original limitation period or within two years after the order for relief, whichever is later.
4.707 Abandonment.
The cause of action may be abandoned by the trustee sua sponte or by order of the court upon request of a party in interest, with notice to all creditors and an opportunity to be heard. 365 In most jurisdictions, abandonment by the trustee can occur at the creditors' meeting without additional notice.
4.708 Effect of Closing the Case.
The closing of a bankruptcy case is deemed to abandon to the debtor all scheduled property of the estate not administered by the court. 366 Property of the estate that is not scheduled or abandoned and that is not administered in the case remains property of the estate. 367
4.709 Post-Discharge...
