Henry v. Educ. Fin. Serv. (In re Henry), 18-20809

• Decision Date: 16 December 2019
• Docket Number: No. 18-20809,18-20809
• Citation: 944 F.3d 587
• Parties: In the MATTER OF: Stephanie Marie HENRY Debtor Stephanie Marie Henry, formerly known as Stephanie Marie Henschel, Appellee v. Educational Financial Service, a Division of Wells Fargo Bank, N.A., Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

944 F.3d 587

In the MATTER OF: Stephanie Marie HENRY Debtor

Stephanie Marie Henry, formerly known as Stephanie Marie Henschel, Appellee
v.
Educational Financial Service, a Division of Wells Fargo Bank, N.A., Appellant

No. 18-20809

United States Court of Appeals, Fifth Circuit.

FILED December 16, 2019

Jason W. Burge, Kathryn Johnson, Fishman Haygood, L.L.P., New Orleans, LA, Lynn Elizabeth Swanson, Attorney, Jones, Swanson, Huddell & Garrison, L.L.C., New Orleans, LA, for Appellee.

Thomas A. Connop, Esq., W. Scott Hastings, Esq., Bradley Clay Knapp, Locke Lord, L.L.P., Dallas, TX, for Appellant.

Tara Ann Twomey, Attorney, National Consumer Bankruptcy Rights Center, San Jose, CA, for Amici Curiae PROFESSOR JAY L. WESTBROOK, NATIONAL CONSUMER BANKRUPTCY RIGHTS CENTER, NATIONAL ASSOCIATION OF CONSUMER BANKRUPTCY ATTORNEYS.

Before KING, HIGGINSON, and DUNCAN, Circuit Judges.

PER CURIAM:

The opinion previously filed in this case is withdrawn and the following is substituted.

944 F.3d 589

Years after Stephanie Marie Henry took out a student loan, she filed for bankruptcy and received a discharge. Henry and the company that currently holds her loan, Educational Financial Service, a Division of Wells Fargo Bank, N.A., disagree about whether Henry’s discharge applies to that loan.¹ Henry filed an adversary proceeding in bankruptcy court raising that issue, but Wells Fargo moved the bankruptcy court to compel arbitration. The bankruptcy court denied that motion, and for the following reasons, we AFFIRM.

I.

Stephanie Marie Henry borrowed money from Wachovia Bank of Delaware, N.A.—the predecessor in interest of Educational Financial Service, a Division of Wells Fargo Bank, N.A. ("Wells Fargo")—to attend the Ultrasound Diagnostic School in Houston. The documentation for the loan contained the following arbitration provision:

14. Arbitration. Any controversy or claim arising out of or related to this Note, or an alleged breach of this Note, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the arbitration award may be entered in any court having jurisdiction.

Henry signed that documentation on November 11, 2002.

More than a decade later, Henry filed for bankruptcy under Chapter 13 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Texas. Wells Fargo filed a proof of claim in Henry’s bankruptcy proceeding. The bankruptcy court confirmed Henry’s Chapter 13 plan on April 25, 2013. Over the next five years, Henry made payments to her creditors, including Wells Fargo, as required by her plan. Because Henry completed her Chapter 13 plan, the bankruptcy court entered a discharge order on May 17, 2018.

When Henry received her discharge, her attorney sent a letter to Wells Fargo. That letter stated that Henry’s debt to Wells Fargo had been discharged and asked Wells Fargo: "Please acknowledge that you recognize the discharge of this loan, and report it accurately on [Henry’s] credit reports." Wells Fargo sent a reply letter to Henry’s lawyer, stating that Wells Fargo had processed his "request to cease all communication with Stephanie Henry" about her loan. Wells Fargo indicated that future correspondence would be sent to the lawyer—not Henry—and asked the lawyer: "Once Stephanie Henry is no longer your client, please contact our office ... to let us know communication should resume with Stephanie Henry." Wells Fargo sent a different letter to Henry, telling her that it had "received a request from Austin C. Smith ESQ to cease all communication on" Henry’s loan. Both of Wells Fargo’s letters contained the following postscript: "The laws of some states require us to inform you that this communication is an attempt to collect a debt and ... information obtained will be used for that purpose."

Wells Fargo’s correspondence prompted Henry to initiate an adversary proceeding in the bankruptcy court on her own behalf and on behalf of a putative class of similarly situated individuals. According to Henry, Wells Fargo violated the bankruptcy court’s discharge order by attempting to collect a discharged debt. See

944 F.3d 590

11 U.S.C. § 524(a)(2) (stating that a discharge "operates as an injunction against ... an act, to collect, recover or offset" a discharged debt). Henry sought injunctive relief, a declaratory judgment, damages, and attorney’s fees.

Wells Fargo moved the bankruptcy court to compel arbitration. Wells Fargo asserted that Henry’s claim fell within the scope of the arbitration provision in her loan documentation, and Wells Fargo argued that the Federal Arbitration Act ("FAA") required the bankruptcy court to enforce that provision. Wells Fargo acknowledged that, under our precedents, the bankruptcy court had discretion to refuse to compel arbitration in an action to enforce a discharge order. Wells Fargo maintained, however, that the Supreme Court’s decision in Epic Systems Corp. v. Lewis , ––– U.S. ––––, 138 S. Ct. 1612, 200 L.Ed.2d 889 (2018) cast doubt on those precedents.

The bankruptcy court denied Wells Fargo’s motion. The bankruptcy court reasoned that Henry’s claims did not "arise under the loan agreement between the parties," because Wells Fargo’s "obligation to comply with the Court’s discharge order and the statutory injunction provided under 11 U.S.C. § 524 is not, and cannot be, part of a contractual negotiation between private parties."² The bankruptcy court found Epic Systems to be "inapplicable to the instant case," because "Henry’s claims do not arise out of an arbitrable contract between the parties," and because "the Supreme Court gave no indication in Epic that it intended its decision to reach"...