Otero v. Green Tree Servicing, LLC (In re Otero)
| Decision Date | 10 September 2013 |
| Docket Number | Bankruptcy No. 7–98–14677–R.,Adversary No. 12–1309–T. |
| Citation | 498 B.R. 313 |
| Parties | In re V. Lynn OTERO, Debtor. V. Lynn Otero, Plaintiff, v. Green Tree Servicing, LLC, Defendant. |
| Court | U.S. Bankruptcy Court — District of New Mexico |
OPINION TEXT STARTS HERE
Michael K. Daniels, Albuquerque, NM, for Plaintiff.
Timothy J. Murphy, Sutin, Thayer & Browne, Christopher A. Holland, Albuquerque, NM, for Defendant.
This matter is before the Court after trial on the merits on Plaintiff's claim that Defendant violated the discharge injunction. For the reasons set forth below, the Court rules in Plaintiff's favor and finds that a sanction or damages award of $15,951 is appropriate.
The Court finds that the following facts:
1. Plaintiff resides in New Mexico and is the debtor in the above-captioned, discharged, Chapter 7 bankruptcy case.
2. Defendant is a foreign corporation transacting business in New Mexico.
3. Plaintiff purchased a mobile home in 1997, and financed the purchase with a loan from Bank of America (the “Loan”).
4. Plaintiff filed the above-captioned bankruptcy case on July 29, 1998, and listed Bank of America as a creditor.
5. An order discharging Plaintiff was entered November 4, 1998.
6. Plaintiff's bankruptcy case was closed November 4, 1998.
7. Plaintiff lived in the mobile home until 2002.
8. Plaintiff is relatively unsophisticated, with a 9th Grade education and somewhat limited literacy.
9. For some reason, Plaintiff decided to keep the mobile home after she moved out, rather than surrender it to Defendant. The Court does not know why Plaintiff elected that course of action, but it was her decision to make. Defendant had no duty to explain to Plaintiff that surrendering the mobile home likely was more prudent.
10. In or about 2004, Defendant took over servicing the Loan.
11. Defendant first contacted Plaintiff in writing in 2005, sending her a “Monthly Informational Statement.”
12. Defendant sent Plaintiff at least ten such statements between 2005 and 2012.
13. Defendant first contacted Plaintiff by telephone in 2004. Between 2004 and 2010, telephone contact was sporadic and relatively infrequent.
14. Defendant's procedures manual provides:
When contacting a post discharge non-reaffirmed debtor or their attorney:
• Contact them only ONCE a month to ask whether the debtor wishes to retain or surrender the collateral
• Follow scripting in Figure # 3 below, as appropriate.
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Mahala A. Church v. Accretive Health, Inc.
...that have considered this issue that there is no private cause of action for violating the discharge injunction."); In re Otero, 498 B.R. 313, 319 (Bankr. D.N.M. 2013) ("the Court holds that § 524(a)(2) does not confer a private right of action upon debtors in cases of violation of the disc......
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Kellogg v. First Land Dev., LLC (In re Kellogg)
...matter. There is no private right of action under § 524 for a creditor's violation of the discharge injunction. In re Otero , 498 B.R. 313, 319 (Bankr. D.N.M. 2013). Instead, a debtor's remedy lies in contempt proceedings pursuant to § 105(a). In re Paul , 534 F.3d at 1307. Under that secti......
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In re Ritchey
...Indeed, a motion for contempt is the traditional method to pursue discharge violations. See, e.g., Otero v. Green Tree Servicing ( In re Otero ), 498 B.R. 313, 320 (Bankr.D.N.M.2013); Bowen v. Mountain Commerce Bank ( In re Bowen ), Bankr.No. 01–22901, Adv. No. 09–5092, 2010 WL 2430777, at ......
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In re Hafen
...disagrees. This Motion for Sanctions, as well as any violation of the discharge injunction, exists in and of itself. See In re Otero , 498 B.R. 313 (Bankr. D.N.M. 2013) ; see also Walls v. Wells Fargo Bank , 276 F.3d 502 (9th Cir. 2002).9 See infra note 29.10 Hafen v. Adams , et al. (In re ......
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Walking the Balance Beam of the Bankruptcy Code's Discharge Injunction
...WL 2731299, at *3, *7. [88] In re Robben, 562 B.R. 469, 474 (Bankr. D. Kan. 2017). [89] Otero v. Green Tree Servicing, LLC (In re Otero), 498 B.R. 313, 320 (Bankr. D.N.M. 2013) (stating that while discharge injunction violation claims are generally brought as contested matters, an adversary......
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Walking the Balance Beam of the Bankruptcy Code's Discharge Injunction
...WL 2731299, at *3, *7. [88] In re Robben, 562 B.R. 469, 474 (Bankr. D. Kan. 2017). [89] Otero v. Green Tree Servicing, LLC (In re Otero), 498 B.R. 313, 320 (Bankr. D.N.M. 2013) (stating that while discharge injunction violation claims are generally brought as contested matters, an adversary......