FILED
OCT 24 2018
NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. SC-18-1064-FSKu
MICHAEL DON COBBS, Bk. No. 17-01830-CL7
Debtor.
MICHAEL DON COBBS,
Appellant,
v. MEMORANDUM*
NISSAN MOTOR ACCEPTANCE
CORPORATION,
Appellee.
Argued on July 27, 2018 at Pasadena, California
Submitted on September 11, 2018
Filed – October 24, 2018
Appeal from the United States Bankruptcy Court
for the Southern District of California
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
Honorable Christopher B. Latham, Bankruptcy Judge, Presiding
Appearances: Michael G. Doan argued for appellant Michael Don
Cobbs; Stephen L. Chesney of Vanlochem & Associates
argued for appellee Nissan Motor Acceptance
Corporation.
Before: FARIS, SPRAKER, and KURTZ, Bankruptcy Judges.
INTRODUCTION
Chapter 71 debtor Michael Don Cobbs appeals the bankruptcy court’s
denial of his request for sanctions against appellee Nissan Motor
Acceptance Corporation (“NMAC”) based on alleged violations of the
discharge injunction. He argues that the bankruptcy court applied the
wrong legal standard, erred in issuing an order to show cause, and
erroneously stayed discovery. We AFFIRM as to these issues.
Mr. Cobbs also argues that the bankruptcy court erred in finding that
NMAC did not know that the discharge injunction applied after his
counsel sent a letter demanding that NMAC cease sending billing
statements. Although we have doubts about Mr. Cobbs’ and his counsel’s
tactics, we agree that the court should not have decided the factual
question of NMAC’s subjective knowledge without holding an evidentiary
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code,
11 U.S.C. §§ 101-1532.
2
hearing. Accordingly, we REVERSE and REMAND on the issue of
NMAC’s subjective knowledge that the discharge injunction applied.
FACTUAL BACKGROUND
A. Mr. Cobbs’ chapter 7 bankruptcy
On March 31, 2017, Mr. Cobbs filed a chapter 7 petition and
scheduled a leased 2015 Nissan Sentra (the “Vehicle”) as personal property,
with NMAC holding a secured claim. Mr. Cobbs stated his intention to
retain the Vehicle and assume the lease.
Throughout his bankruptcy case, Mr. Cobbs used a plethora of
addresses for NMAC. This began with his initial bankruptcy documents. In
his Schedule D and creditor matrix, he said that NMAC’s address was 2901
Kinwest Parkway, Irving TX 75063 (“Kinwest Parkway Address”). He says
he obtained this address from a credit report. In his statement of financial
affairs, he provided two addresses for NMAC: the Kinwest Parkway
Address and P.O. Box 660360, Dallas TX 75266-0360 (“Designated
Correspondence Address”), which was an address specified for
correspondence on the billing statements. Mr. Cobbs does not explain why
he listed different addresses for NMAC in different parts of his initial
documents.
In any event, the Bankruptcy Noticing Center automatically
redirected notice of Mr. Cobbs’ bankruptcy filing to an address designated
by NMAC, P.O. Box 660366, Dallas TX 75266-0366 (“Designated
3
Bankruptcy Address”).
On April 5, 2017, NMAC received notice of Mr. Cobbs’ bankruptcy at
its Designated Bankruptcy Address. Based on Mr. Cobbs’ stated intention
to retain the Vehicle, NMAC’s counsel contacted Mr. Cobbs to offer a
reaffirmation agreement. It sent copies of the agreement via e-mail to
Mr. Cobbs’ counsel on May 2. Mr. Cobbs and his counsel did not respond.
On May 4, Mr. Cobbs called NMAC and said that he did not want to
retain the Vehicle and would return it to the dealership. NMAC instructed
Mr. Cobbs to provide the contact information of the person at the
dealership to whom he surrendered the Vehicle.
Within a matter of days, Mr. Cobbs changed his mind. On May 9,
Mr. Cobbs telephoned NMAC and said that he wanted to keep the Vehicle.
On May 18, NMAC’s counsel sent Mr. Cobbs’ counsel another copy
of the reaffirmation agreement. Despite a follow-up e-mail from NMAC’s
counsel on June 19, Mr. Cobbs’ counsel yet again did not respond.
On June 29, Mr. Cobbs telephoned NMAC to ask when he would
begin receiving monthly statements. That same day, Mr. Cobbs’ counsel
faxed NMAC an authorization to resume sending monthly statements to
Mr. Cobbs. It instructed: “Please feel free to resume sending Mr. Michael D.
Cobbs his monthly statements to his residence . . . .”
Contrary to Mr. Cobbs’ stated intention, he did not assume the
Vehicle lease. See § 521(a)(6), (d). The bankruptcy court granted Mr. Cobbs
4
his discharge on July 5, 2017. NMAC received notice of the discharge at its
Designated Bankruptcy Address on July 8.
On July 11, Mr. Cobbs called NMAC to ask again when he would
begin receiving monthly statements. But within a few days, he changed his
mind for the fourth time. On July 17, he asked his counsel, Michael G.
Doan, to arrange for the Vehicle’s surrender. Although Mr. Cobbs had told
NMAC that he would surrender the Vehicle at the dealership, Mr. Doan
arranged for a company called DH Wholesale2 to receive and hold the
Vehicle. Mr. Cobbs does not explain why he did not surrender the Vehicle
to a Nissan dealership as he had told NMAC he would do.
Mr. Cobbs muddied the waters again when, on July 18, he
telephoned NMAC and repeated his prior request for monthly statements.
NMAC complied with these requests and sent Mr. Cobbs a billing
statement dated July 24, 2017.
Mr. Cobbs delivered the Vehicle to DH Wholesale on July 26. DH
Wholesale’s agent sent NMAC a Notice of Stored Vehicle to P.O. Box
254648, Sacramento, CA 95865 (“Sacramento PO Box”), which Mr. Cobbs
says is NMAC’s address on file with the California Department of Motor
2
DH Wholesale had an “arrangement with [Mr. Doan’s law firm] to serve as a
liaison between debtors and secured creditors to facilitate the transfer of secured
vehicles for no charge for a period of seven (7) days.”
5
Vehicles (“DMV”).3 This notice informed NMAC that DH Wholesale was
holding the Vehicle. Mr. Doan also sent NMAC a Notice of Surrender and
Demand for Pickup (“Notice of Surrender”) to its Kinwest Parkway
Address. He informed NMAC that Mr. Cobbs had surrendered the Vehicle
to DH Wholesale, which would hold the Vehicle for seven days, after
which time DH Wholesale could impose a statutory lien and Mr. Cobbs
could seek sanctions. Neither of these notices explicitly withdrew
Mr. Cobbs’ prior requests for monthly statements. Neither was sent to
NMAC’s Designated Bankruptcy Address or Designated Correspondence
Address.
NMAC sent Mr. Cobbs a billing statement dated August 22, 2017.
As reflected in NMAC’s collection log, it appears that Mr. Doan’s
office called NMAC and requested a facsimile number. An entry dated
September 1, 2017 states that NMAC gave Mr. Doan’s office a fax number.
On September 6, 2017, Mr. Doan sent a letter to NMAC stating that the July
24 and August 22 billing statements violated the discharge injunction. He
demanded that NMAC cease sending statements and threatened to seek
sanctions. Mr. Doan faxed the letter to NMAC at the number it gave to his
office. Mr. Doan also mailed the letter to NMAC at P.O. Box 742657,
Cincinnati OH 45274 (“Cincinnati PO Box”). Mr. Doan admitted in the
bankruptcy court that this is a payment-only lock box address, but
3
As we explain in note 5 below, this notice suffers from multiple inconsistencies.
6
NMAC’s collection log also indicates that it received the letter on
September 8 and forwarded it to “BK BOX FOR REVIEW.”
On September 13, 2017, NMAC mailed Mr. Cobbs a form for him to
sign and return in order to confirm his request that NMAC continue
sending monthly invoices. The form indicated that NMAC thought
Mr. Cobbs was still in possession of the Vehicle. The form stated in bold
type that NMAC “is aware of either your pending Bankruptcy proceedings
or discharge in Bankruptcy and delivery of this Request and Authorization
to Receive Monthly Statements is not an attempt by [NMAC] to collect a
debt in violation of the automatic stay or discharge injunction.”
On September 14, the California DMV gave DH Wholesale approval
to conduct a lien sale of the Vehicle. DH Wholesale gave notice to NMAC
at the Sacramento PO Box. A person whose connection (if any) to NMAC is
unspecified signed a postal return receipt for the notice on September 22.
The lien sale took place on October 10.
In the meantime, NMAC sent Mr. Cobbs another statement dated
September 21.
B. The motion for contempt
On October 9, 2017, Mr. Cobbs filed a motion for contempt against
NMAC (“Motion for Contempt”). He sought monetary sanctions and
injunctive relief “based upon the pleadings herein and after an evidentiary
hearing. To the extent that NMAC opposes this motion, COBBS further
7
requests that this Court enter a discovery briefing schedule.”
Mr. Cobbs alleged that NMAC willfully violated the discharge
injunction by sending him the July, August, and September monthly
statements and the request for authorization on September 13. He argued
that these communications constituted harassment and caused him to
suffer depression and trauma.
Mr. Cobbs sent the Motion for Contempt and the associated notice of
hearing by U.S. mail to 2710 Gateway Oaks Dr. Ste 150N, Sacramento, CA
95833 (“Service of Process Address”), which is the address listed in the
California state records for NMAC’s agent for service of process. He did
not send it to NMAC’s Designated Bankruptcy Address, Designated
Correspondence Address, any other address for NMAC which he had
previously used, or to NMAC’s attorneys who had sent the proposed
reaffirmation agreement. Despite the opposition deadline noted in the
notice of hearing, NMAC did not file any response.
After Mr. Cobbs filed the Motion for Contempt, NMAC sent
Mr. Cobbs monthly statements dated October 23 and November 21. On
November 29, it issued a notice of default, which included the following
disclaimer language: “Important notice for bankruptcy customers: if your
obligation to pay any debt listed in this notice has been discharged in
bankruptcy . . . we are not through this document, attempting to collect any
amounts from you as a personal liability . . . .” Mr. Doan filed a
8
supplemental declaration apprising the bankruptcy court of these three
communications.
On December 11, the bankruptcy court held a hearing on the Motion
for Contempt. NMAC did not appear. On December 13, the court issued an
order to show cause (“OSC”). The court found that NMAC likely violated
the discharge injunction by sending Mr. Cobbs the July, August,
September, October, and November billing statements, the request for
authorization, and the notice of default. The court ordered NMAC to show
cause why it should not be held in contempt and sanctioned for its
apparent ongoing violations of the discharge injunction. It set the matter
for hearing and stated that, “[i]f factual disputes remain after that, an
evidentiary hearing may be needed.”
The bankruptcy court ordered Mr. Cobbs to serve the OSC on NMAC
at the Kinwest Parkway Address, the Designated Correspondence Address,
the Service of Process Address, and NMAC’s corporate offices at One
Nissan Way, Franklin, TN 37067. Mr. Cobbs complied.
NMAC responded to the OSC. It said that it sent the billing
statements only at Mr. Cobbs’ request. It included the declaration of Danny
Merritt, an NMAC employee who oversaw Mr. Cobbs’ account. Mr. Merritt
stated that NMAC is registered with the Bankruptcy Noticing Center to
receive all bankruptcy notices at the Designated Bankruptcy Address or at
8900 Freeport Parkway, Irving, TX 75063 (“Freeport Parkway Address”).
9
He stated that none of the relevant filings – the Motion for Contempt,
notice of hearing, declaration, supplemental declaration, or debtor’s
declaration – were served on NMAC at either of the proper addresses. He
stated that NMAC did not receive the Motion for Contempt or any of its
supporting documents.
Mr. Merritt stated that the Motion for Contempt omitted Mr. Cobbs’
multiple requests for monthly statements. He stated that, in the fax dated
June 29, 2017, Mr. Cobbs’ counsel authorized NMAC to send monthly
statements to Mr. Cobbs. In response to this authorization, NMAC
resumed sending monthly statements starting in July 2017.
Mr. Merritt also stated that NMAC did not receive Mr. Doan’s Notice
of Surrender, which was sent to the Kinwest Parkway Address. He stated
that NMAC had not used that address for over fourteen years.
Mr. Merritt represented that the Cincinnati PO Box is a lockbox for
payments only. He stated that NMAC did not receive any correspondence
sent to that address.
Mr. Merritt also produced a collection log that purportedly
documented all communication between NMAC and Mr. Cobbs. He
recounted Mr. Cobbs’ telephone calls to NMAC (which Mr. Cobbs had not
disclosed), including:
• Mr. Cobbs’ May 4, 2017 telephone call, wherein he stated that
he did not want to keep the Vehicle.
10
• Mr. Cobbs’ May 9 telephone call, wherein he changed his mind
and stated that he wanted to make payments.
• Mr. Cobbs’ June 29 telephone call, wherein he asked when
NMAC would resume sending monthly statements.
• Mr. Cobbs’ July 11 telephone call, wherein he again asked when
he would start receiving monthly statements.
• Mr. Cobbs’ July 18 telephone call, wherein he again asked for
monthly statements and inquired when his payment was due.
Mr. Merritt said that he did not learn about the OSC until he received
Mr. Doan’s supplemental declaration on December 14. Only then did
NMAC learn that Mr. Cobbs had delivered the Vehicle to DH Wholesale.
C. The OSC hearing
The bankruptcy court held a hearing on the OSC on February 12.
Mr. Cobbs argued that the court should either immediately sanction
NMAC or order further discovery.
The bankruptcy court took the matter under advisement. It stated
that, “[i]f the OSC is discharged, that will end the matter. If the OSC is not
discharged, there will need to be discovery and an evidentiary hearing” on
factual issues. In the meantime, the court stayed further discovery.
D. The order dissolving the OSC
The bankruptcy court issued its order dissolving the OSC on March 6,
2018. It stated that “[i]t is beyond cavil that Nissan’s claim is subject to the
11
discharge injunction.” It held that NMAC had knowledge of the discharge
injunction because it received notice of the discharge on July 8 at its
Designated Bankruptcy Address.
Nevertheless, it held that Mr. Cobbs did not prove by clear and
convincing evidence that NMAC was subjectively aware that its conduct
was subject to the discharge injunction. It noted that Mr. Cobbs
“engendered much confusion” by vacillating about whether he would
assume the Vehicle lease. Additionally, he sent communications to NMAC
at various addresses - some “defunct,” “inappropriate,” or not designated
for correspondence - with little consistency. It found that, “[g]iven this
matter’s ambiguities, the undisputed evidence is far from clear and
convincing that Nissan believed the discharge injunction barred its
conduct.” The court also rejected Mr. Cobbs’ contention that the Notice of
Surrender and the September 2017 letter from his counsel revoked his
earlier requests for monthly statements.
The court discharged the OSC because NMAC did not know that its
conduct was subject to the discharge injunction, even though it had
knowledge of the discharge injunction and intended the actions that
violated the discharge injunction.
Mr. Cobbs timely appealed.
JURISDICTION
The bankruptcy court had jurisdiction pursuant to
28 U.S.C. §§ 1334
12
and 157(b)(1). We have jurisdiction under
28 U.S.C. § 158.
ISSUES
(1) Whether the bankruptcy court articulated the correct legal
standard.
(2) Whether the bankruptcy court erred in treating the Motion for
Contempt as an application for an OSC and staying discovery while
deciding the OSC.
(3) Whether the bankruptcy court erred in holding that NMAC did
not knowingly violate the discharge injunction without holding an
evidentiary hearing.
STANDARDS OF REVIEW
We review de novo questions of law, including whether the
bankruptcy court applied the correct legal standard. See Drummond v. Welsh
(In re Welsh),
465 B.R. 843, 847 (9th Cir. BAP 2012), aff’d,
711 F.3d 1120 (9th
Cir. 2013). De novo review requires that we consider a matter anew, as if no
decision had been rendered previously. United States v. Silverman,
861 F.2d
571, 576 (9th Cir. 1988).
We review for an abuse of discretion an order denying a motion for
civil contempt. Knupfer v. Lindblade (In re Dyer),
322 F.3d 1178, 1191 (9th Cir.
2003); Nash v. Clark Cty. Dist. Atty’s Office (In re Nash),
464 B.R. 874, 878 (9th
Cir. BAP 2012). Similarly, we review a court’s decision whether to hold an
evidentiary hearing or allow discovery for an abuse of discretion. See
13
Murphy v. Schneider Nat'l, Inc.,
362 F.3d 1133, 1139 (9th Cir. 2004)
(evidentiary hearing); Khachikyan v. Hahn (In re Khachikyan),
335 B.R. 121,
125 (9th Cir. BAP 2005) (discovery and continuances). To determine
whether the bankruptcy court has abused its discretion, we conduct a
two-step inquiry: (1) we review de novo whether the bankruptcy court
“identified the correct legal rule to apply to the relief requested” and (2) if
it did, whether the bankruptcy court’s application of the legal standard was
illogical, implausible, or without support in inferences that may be drawn
from the facts in the record. United States v. Hinkson,
585 F.3d 1247, 1262-63
& n.21 (9th Cir. 2009) (en banc).
The bankruptcy court’s finding of a willful violation of § 524 is a
factual finding reviewed for clear error. Emmert v. Taggart (In re Taggart),
548 B.R. 275, 286 (9th Cir. BAP 2016), aff’d,
888 F.3d 438 (9th Cir. 2018). A
finding of fact is clearly erroneous if it is illogical, implausible, or without
support in the record. Retz v. Samson (In re Retz),
606 F.3d 1189, 1196 (9th
Cir. 2010).
DISCUSSION
A. The bankruptcy court applied the correct legal standard.
1. The bankruptcy court may sanction a contemnor for a
knowing violation of the discharge injunction.
Section 727(a) provides that, subject to certain exceptions, “[t]he
[bankruptcy] court shall grant the debtor a discharge.” The discharge order
14
“discharges the debtor from all debts that arose before the date of the
[bankruptcy filing].” § 727(b). More specifically, a discharge “operates as
an injunction against the commencement or continuation of an action, the
employment of process, or an act, to collect, recover or offset any such debt
as a personal liability of the debtor, whether or not discharge of such debt
is waived[.]” § 524(a)(2).
The discharge applies only to the debtor’s “personal liability.”
§ 524(a)(2). A creditor’s rights in the debtor’s property are not affected. See
HSBC Bank, USA, Nat’l Ass’n v. Blendheim (In re Blendheim),
803 F.3d 477,
494 (9th Cir. 2015) (“Discharges leave unimpaired a creditor’s right to
proceed in rem against the debtor’s property.”); 4 Collier on Bankruptcy
¶ 524.02 (Richard Levin & Henry J. Sommer eds., 16th ed.) (“[T]he
provisions [of § 524] apply only to the personal liability of the debtor, so
they do not affect an otherwise valid prepetition lien on property.”). Thus,
the discharge does not affect a lessor’s rights in the leased property.
The discharge is automatic and self-effectuating. Creditors must obey
it, even if debtors do not assert it. See Pavelich v. McCormick, Barstow,
Sheppard, Wayte & Carruth LLP (In re Pavelich),
229 B.R. 777, 781-82 (9th Cir.
BAP 1999).
“A bankruptcy court may enforce the discharge injunction by
holding a party in contempt for knowingly violating the discharge.” In re
Taggart, 888 F.3d at 443 (citing ZiLOG, Inc. v. Corning (In re ZiLOG, Inc.), 450
15
F.3d 996, 1007 (9th Cir. 2006)). The Ninth Circuit follows a two-part test to
determine whether the contemnor knowingly and willfully committed a
violation of the discharge injunction: “the movant must prove that the
creditor (1) knew the discharge injunction was applicable and (2) intended
the actions which violated the injunction.” In re ZiLOG, Inc., 450 F.3d at
1007 (quoting Renwick v. Bennett (In re Bennett),
298 F.3d 1059, 1069 (9th Cir.
2002)). The first element of this test looks to the creditor’s subjective state of
mind. In re Taggart, 548 B.R. at 288 (“Whether a party is aware that the
discharge injunction is applicable to his or her claim is a fact-based inquiry
which implicates a party’s subjective belief, even an unreasonable one.”).
For purposes of the second element, “[t]he focus is on whether the
creditor’s conduct violated the injunction and whether that conduct was
intentional; it does not require a specific intent to violate the injunction.”
Desert Pine Villas Homeowners Ass’n v. Kabiling (In re Kabiling),
551 B.R. 440,
445 (9th Cir. BAP 2016).
The debtor must prove its case by clear and convincing evidence. In
re Taggart, 548 B.R. at 286.
2. The bankruptcy court correctly inquired into NMAC’s
conduct.
Mr. Cobbs argues that the bankruptcy court applied the wrong
standard when it required him to prove “that Nissan knew that the
discharge injunction applied to its conduct.” (Emphasis added.) He
16
contends that he only needed to prove that NMAC knew that the discharge
injunction applied to NMAC’s claim.
Mr. Cobbs’ argument makes no linguistic sense. Section 524(a)(2)
makes clear that the discharge is an injunction against certain kinds of
conduct. Indeed, an injunction by its nature applies to conduct. An
injunction is an order requiring someone to do or refrain from doing
something. All injunctions are addressed to activity. It makes sense to
enjoin a person from prosecuting or collecting a claim; it makes no sense to
enjoin a claim, because claims cannot do anything and cannot be ordered to
do or not do something.
Mr. Cobbs is correct that some prior decisions say that the debtor
must prove that the contemnor knows that the discharge injunction applies
to his “claim.” The Ninth Circuit’s decision ZiLOG is one such case. An
employer agreed to pay retention bonuses to certain employees, including
three women, but later rescinded the agreement and filed a bankruptcy
petition. The company’s general counsel informed the women in writing
that, “We expect that the chapter 11 case will have no effect on you . . . .”
After the company received its discharge, the women sued for sex
discrimination, arguing that the company had paid the retention bonuses
to male employees. The company invoked the discharge as a defense to the
women’s suit and also sought sanctions, claiming that the women had
willfully violated the discharge injunction. The bankruptcy court ruled in
17
favor of the employer, but the Ninth Circuit reversed. It held that “[t]here
remains the question of whether the women and their counsel were, in fact,
unaware of the discharge injunction and its potential applicability to their
claims.” 450 F.3d at 1009 (emphasis added). It directed the bankruptcy
court to “determine whether the women were aware of the discharge
injunction and its applicability to their claims.” Id. (emphasis added). It
noted:
To the extent that the deficient notices led the women to
believe, even unreasonably, that the discharge injunction did
not apply to their claims because they were not affected by the
bankruptcy, this would preclude a finding of willfulness.
Id. at 1010 n.14.
Similarly, we have relied on ZiLOG and stated:
[T]he Ninth Circuit has crafted a strict standard for the actual
knowledge requirement in the context of contempt before a
finding of willfulness can be made. This standard requires
evidence showing the alleged contemnor was aware of the
discharge injunction and aware that it applied to his or her
claim.
In re Taggart, 548 B.R. at 288. In that case, the debtor was involved in
litigation when he filed for chapter 7 relief. After he received his discharge,
the other parties to the litigation filed a motion seeking permission to assert
that he was liable for attorneys’ fees because he had “returned to the fray”
after the discharge. The bankruptcy court sanctioned the other parties for
18
violating the discharge injunction, but we reversed, holding that the
bankruptcy court committed clear error in finding that the other parties
had willfully violated the discharge.
The Taggart decision sometimes says that the issue was whether the
litigants were subjectively aware that the discharge applied to their
“claim,” but elsewhere it uses the phrase “fee request” rather than “claim.”
In other words, the real question was not whether the discharge applied to
the other litigants’ claim for attorneys’ fees, but rather whether the
discharge injunction protected the debtor from the litigants’ assertion and
enforcement of that claim. Similarly, in ZiLOG, the inquiry did not focus on
the discrimination claims per se; the issue was whether the women could
take action to prosecute their claims against their employer.
Put simply, when courts talk about the discharge of a claim, or the
applicability of the discharge to a claim, they are using shorthand. When
courts say that the discharge injunction applies to a claim, they mean that
the discharge injunction bars the act of prosecuting or collecting that claim.
This clarification is particularly important to this case because the
discharge injunction only protects the debtor from personal liability on
discharged debts, and does not bar the enforcement of a creditor’s rights in
the debtor’s property. This means that the discharge injunction can apply
to certain conduct by the creditor – efforts to collect the debt as a personal
obligation – and not apply to other conduct – efforts to enforce the
19
creditor’s rights in the debtor’s property, such as a lien or a lease – even
though all of the conduct pertains to a single “claim.”
We recently illustrated this point in Ocwen Loan Servicing, LLC v.
Marino (In re Marino),
577 B.R. 772 (9th Cir. BAP 2017). We considered
whether a secured creditor had violated the discharge injunction by
sending post-discharge dunning notices. We explained:
The discharge has one important limit: it bars only efforts
to collect debts “as a personal liability of the debtor.”
§ 524(a)(2). This means that secured creditors can foreclose their
liens after the discharge is entered. . . .
This creates some tension. While the discharge generally
prohibits creditors from communicating with discharged
debtors in an effort to extract payment, lienholders usually
must communicate with debtors in order to enforce their liens.
For example, a foreclosure of a mortgage without notice to the
mortgagor would likely be invalid even if the mortgagor were
not personally liable for the mortgage debt.
The way to reconcile this tension is to hold that a
lienholder may communicate with a discharged debtor only to
the extent necessary to preserve or enforce its lien rights, and
may not attempt to induce the debtor to pay the debt.
577 B.R. at 783-84.
In this case, the bankruptcy court correctly considered not only
whether NMAC knew that its claim was barred by the discharge
injunction, but also whether it believed that its actions were a legitimate
20
and permissible effort to enforce its rights as a lessor. The bankruptcy court
applied the correct legal standard.
B. The bankruptcy court did not abuse its discretion in issuing the
OSC or staying discovery while the OSC was pending.
Mr. Cobbs argues that the bankruptcy court denied him his “day in
court” by treating his Motion for Contempt as an application and staying
discovery. He is wrong.
1. The issuance of the OSC, rather than an immediate default
judgment, was not error.
Mr. Cobbs argues for the first time on appeal that the bankruptcy
court erred by treating his “motion for contempt” as an “application for
OSC.” He argues that the bankruptcy court should have granted his
uncontested motion by default and awarded damages when NMAC failed
to respond.
First, the difference between a motion and application “is a purely
semantic distinction.” Barrientos v. Wells Fargo Bank, N.A.,
633 F.3d 1186,
1191 (9th Cir. 2011).
Second, requiring Mr. Cobbs to serve NMAC at additional addresses
and allowing NMAC to respond to the OSC, rather than immediately
imposing sanctions, was proper and within the bankruptcy court’s
discretion. Mr. Cobbs cites no authority stating otherwise.
Furthermore, Mr. Cobbs does not point to anywhere in the record
21
where he objected to the court’s treatment of the Motion for Contempt. We
decline to consider it for the first time on appeal. See Yamada v. Nobel Biocare
Holding AG,
825 F.3d 536, 543 (9th Cir. 2016).
2. The bankruptcy court did not err in staying discovery while
the OSC was outstanding.
Mr. Cobbs argues that the bankruptcy court should not have stayed
discovery while the OSC was outstanding.4 He contends that he needed
additional discovery to show discrepancies in NMAC’s collection log and
its knowledge of the discharge injunction’s applicability to its claim.
Mr. Cobbs ignores the basic proposition that bankruptcy courts have
the power to control the sequence and timing of discovery. See United States
ex rel. Army Athletic Ass’n v. Reliance Ins. Co.,
799 F.2d 1382, 1387 (9th Cir.
1986) (“[A] district [court] has wide latitude in controlling discovery, and
its ruling will not be overturned in the absence of a clear abuse of
discretion.”(citation omitted)); Rebel Oil Co. v. Atl. Richfield Co.,
133 F.R.D.
41, 42 (D. Nev. 1990) (stating that Civil Rule 26, made applicable in
bankruptcy by Rule 7026, “empower[s] a district court to control the timing
4
Mr. Cobbs is correct that the bankruptcy court mistakenly thought that he
needed to obtain permission before conducting discovery in a contested matter. See In re
Khachikyan,
335 B.R. at 126 (“Contrary to the debtor’s position, discovery was available
to him as of right in the § 707(b) contested matter. . . . In short, the appellant could have
launched discovery the moment the United States trustee filed its § 707(b) motion.”).
But the error was harmless because, as we note in the text, the court only stayed
discovery while it decided the OSC and acknowledged that discovery may be necessary
if the matter proceeded beyond the OSC.
22
and order of discovery”).
Mr. Cobbs cites our decision in Khachikyan for the proposition that
“the contested matter should not be resolved until the required responses
are provided.” But Khachikyan does not help Mr. Cobbs’ case. Mr. Cobbs
notably does not stress the requirement that discovery be “appropriate to
the situation[.]”
335 B.R. at 127. Indeed, we held that the bankruptcy court
did not abuse its discretion in ruling on the motion to dismiss without
allowing further discovery:
We cannot say that the court abused its discretion in
rejecting a continuance of the hearing so as to permit discovery.
The court did not reject the discovery request out of hand.
Rather, it sought to ascertain whether discovery could yield
any information that might affect the outcome of the
dispute. . . . Moreover, the debtor was unable to point to any
utility to discovery under the circumstances. Hence, the court
did not err in refusing further opportunity for discovery.
Id. at 127-28 (emphasis added).
Similarly, in the present case, the bankruptcy court stated during the
hearing on the OSC that it was merely staying discovery while it decided
the OSC. This was well within its discretionary power.
C. The bankruptcy court erred when it decided the factual question of
NMAC’s subjective knowledge without holding an evidentiary
hearing.
Mr. Cobbs argues that the bankruptcy court erred by finding that
23
NMAC did not know that the discharge injunction applied. He maintains
that NMAC had ample notice that the discharge injunction applied to the
Vehicle lease. We hold that the bankruptcy court should not have resolved
the disputed factual issue of NMAC’s knowledge without allowing
appropriate discovery and holding an evidentiary hearing.
We start with the proposition that, under the ZiLOG standard, a
creditor does not violate the discharge injunction if it subjectively believes
in good faith that the discharge injunction does not prohibit its conduct,
even if that belief is unreasonable. In re Taggart, 888 F.3d at 444 (“the
creditor’s good faith belief that the discharge injunction does not apply to
the creditor’s claim precludes a finding of contempt, even if the creditor’s
belief is unreasonable”).
Mr. Cobbs argues that ZiLOG’s subjective standard only applies if the
confusion arose from the bankruptcy court’s misleading instruction. He
argues that ZiLOG is limited to complex chapter 11 cases where creditors
receive incorrect information from the bankruptcy court. He cites In re
Mighell,
564 B.R. 34 (Bankr. C.D. Cal. 2017), and Chionis v. Starkus (In re
Chionis), BAP No. CC-12-1501-KuBaPa,
2013 WL 6840485 (9th Cir. BAP
Dec. 27, 2013), for the proposition that ZiLOG appears to be “an aberration .
. . mostly ignored in subsequent authority within the Ninth Circuit.”
In Chionis, we held that the bankruptcy court erred in declining to
award sanctions for violation of a discharge order where the creditor
24
claimed to not know that the discharge injunction applied to his claim due
to a “no-discharge” provision in their contract. We distinguished ZiLOG,
stating:
Here, were [sic] are not dealing with a complex chapter 11
reorganization plan or with misleading notices from the debtor
or the bankruptcy court suggesting that the creditors were not
affected by the bankruptcy. . . . We acknowledge that some of
the language in In re ZiLOG, Inc. is broad and arguably could be
interpreted as precluding a finding of willfulness and hence
precluding the imposition of contempt sanctions whenever the
alleged contemnor testifies that, for whatever reason, he or she
did not subjectively believe that the discharge applied to his or
her claim, no matter how misguided or unreasonable that belief
might have been. However, we do not believe that In re ZiLOG,
Inc. intended such an expansive reading of its comments, given
that such a reading seemingly would render the bankruptcy
discharge all but toothless.
2013 WL 6840485, at *8. Mighell largely relies upon and echoes Chionis’
analysis. See 564 B.R. at 42-43.
Since then, the Ninth Circuit has made clear that ZiLOG is not an
aberration. Its recent decision in Taggart reaffirmed ZiLOG’s holding. 888
F.3d at 444.
Chionis and Mighell are also distinguishable. Chionis specifically
stated that its holding did not apply to cases involving “notices from the
debtor or the bankruptcy court suggesting that the creditors were not
affected by the bankruptcy.”
2013 WL 6840485, at *8 (emphases added).
25
Similarly, Mighell faulted the creditor for “rel[ying] upon his own mistaken
interpretation of the law[,]” rather than on misleading notices from others.
564 B.R. at 43. In the present case, the communications directly from
Mr. Cobbs or his counsel led NMAC to believe that it could continue
sending Mr. Cobbs monthly statements.
Therefore, the bankruptcy court had to decide whether NMAC
subjectively knew that its conduct violated the discharge injunction. See In
re Taggart, 548 B.R. at 288. Disputes about a person’s subjective state of
mind present factual issues that courts ordinarily cannot decide without an
evidentiary hearing. In re ZiLOG, 450 F.3d at 1007 (stating that “knowledge
of the injunction is a question of fact that can normally be resolved only
after an evidentiary hearing”).
In this case, the bankruptcy court denied Mr. Cobbs’ request for
discovery and an evidentiary hearing. The Ninth Circuit has qualified that,
“[o]f course, where the facts are not in dispute, no hearing need be held.”
Id. at 1008 n.11. But here the facts were in dispute. We conclude that,
because there was a conflict in the evidence, the court erred.
To prove that NMAC subjectively knew that the discharge injunction
applied, Mr. Cobbs relies primarily on four communications. We think that
three of the four communications do not create a legitimate factual dispute,
but one does.
The first communication cited by Mr. Cobbs is the “Notice of Stored
26
Vehicle” that DH Wholesale’s agent, Lewis Lien Sales, sent to NMAC. But
even if NMAC received it (which NMAC denies), nothing in this document
explicitly or implicitly revokes Mr. Cobbs’ repeated prior requests for
monthly statements.5
The second communication is the DMV’s notice to NMAC of the lien
sale of the Vehicle. NMAC denies receiving it (although someone signed
the postal receipt on behalf of the addressee). But even if NMAC received
the notice, it does not instruct NMAC to stop communicating with
Mr. Cobbs, and it does not revoke his repeated prior requests for
statements.
The third communication is the form that NMAC sent to Mr. Cobbs
on September 13, 2017, in which NMAC asked him to confirm in writing
his prior telephonic requests for monthly statements. The letter establishes
that NMAC knew of the bankruptcy – indeed, it says that NMAC “is aware
of your . . . discharge in bankruptcy” – but it does not establish that NMAC
knew that the discharge injunction barred its conduct. Rather, it was
NMAC’s attempt to obtain confirmation from Mr. Cobbs that he wanted to
5
We also note troubling inconsistencies between the notice and the declaration
testimony that authenticated it. For example, Douglas Higgins, owner of DH Wholesale,
testified that his company took possession of the Vehicle on July 26, and that his
company stores vehicles free of charge for seven days. But the notice states that DH
Wholesale took possession on July 24 and appears to charge storage fees beginning on
that date. The date on the notice sent to NMAC also appears to be inconsistent with
Mr. Higgins’ declaration.
27
receive monthly statements notwithstanding his discharge.
The fourth communication is Mr. Doan’s letter of September 6, in
which he told NMAC that the billing statements of July 24 and August 22
violated the discharge injunction. He expressly demanded that NMAC
“cease future statements.” If NMAC received this letter, NMAC had to
have known that Mr. Cobbs did not want to receive further statements and
that sending more statements would violate the discharge injunction.
Nevertheless, NMAC sent two more monthly statements and the notice of
default.
The question thus becomes whether NMAC received this letter.
Mr. Doan sent this letter to the Cincinnati PO Box, which, as we have
noted, was an address provided on the monthly statements for payments
only. The same statements said that correspondence should be directed to
the Designated Correspondence Address. Mr. Doan does not explain why
he chose to send this important letter to a payment lockbox address rather
than an address specifically designated for correspondence (or to NMAC’s
counsel, who had repeatedly corresponded with Mr. Doan about the
proposed reaffirmation agreement). But Mr. Doan also faxed the letter to a
number provided by NMAC, a fact that Mr. Merritt’s declaration omits.
(Nor does the declaration mention that NMAC’s collection log reflects that
NMAC received the fax and would forward the letter to “BK BOX FOR
REVIEW.”)
28
In addition to the communications identified in Mr. Cobbs’ briefs,
other facts cast doubt on NMAC’s position that it did not know that
Mr. Cobbs no longer wanted to receive billing statements or that it had a
good faith belief that the discharge injunction did not apply. Mr. Cobbs
served the Motion for Contempt on NMAC’s registered agent for process,
but NMAC only responded with a blanket assertion that it did not receive
it. The bankruptcy court should consider on remand whether the Motion
for Contempt informed NMAC that it should stop sending Mr. Cobbs
billing statements. Similarly, the bankruptcy court should consider
whether NMAC’s failure to obtain a signed reaffirmation agreement can be
reconciled with a good faith belief that the discharge did not apply.
We join in the bankruptcy court’s criticism of counsel’s noticing
practices, which were unexplained, inexplicable, and haphazard at best,
and did not comply with § 342.6 Nonetheless, we are constrained to hold
6
Section 342(c)(2)(A) provides:
If, within the 90 days before the commencement of a voluntary case, a
creditor supplies the debtor in at least two communications sent to the
debtor with the current account number of the debtor and the address at
which such creditor requests to receive correspondence, then any notice
required by this title to be sent by the debtor to such creditor shall be sent
to such address and shall include such account number.
§ 342(c)(2)(A). In addition to addresses designated for payments, the monthly billing
statements from NMAC to Mr. Cobbs in the record identified NMAC’s address “For
Correspondence Only” as the Designated Correspondence Address. The payment
(continued...)
29
that the bankruptcy court erred when it held, as a matter of fact and
without permitting discovery and conducting an evidentiary hearing, that
NMAC lacked subjective knowledge that the discharge injunction applied.
Therefore, we must REVERSE and REMAND.7
6
(...continued)
coupon also listed the Freeport Parkway Address as an alternative address. Mr. Cobbs
presumably received these or similar statements in the months prior to filing his
petition.
Similarly, § 342(e)(1) provides that a creditor “may both file with the court and
serve on the debtor a notice of address to be used to provide notice in such case to such
creditor.” § 342(3)(1). Here, that address was the Designated Bankruptcy Address that
NMAC had on file with the Bankruptcy Noticing Center.
7
We reach this conclusion even though we have serious doubts about many
aspects of Mr. Cobbs’ case.
First, as we have noted, Mr. Cobbs has never explained why he chose to send
notice to NMAC at a wide variety of addresses, with no apparent rhyme or reason, even
though § 342 spells out what addresses should be used for bankruptcy noticing
purposes.
Second, the notice of default that NMAC sent after Mr. Doan’s September 6 letter
may not have violated the discharge injunction. NMAC says that state law required it to
give that notice. See In re Marino, 577 B.R. at 784 (“[A] lienholder may communicate with
a discharged debtor only to the extent necessary to preserve or enforce its lien rights,
and may not attempt to induce the debtor to pay the debt.”).
Third, assuming the bankruptcy court finds a discharge violation, it must assess
damages. The court must consider, in the first instance, whether receipt of the billing
statements and default notice really caused Mr. Cobbs to suffer “severe anxiety” and
“clinical depression,” even though he had recently and repeatedly asked NMAC to
send him some of the statements that he now claims were so upsetting.
(continued...)
30
CONCLUSION
The bankruptcy court did not err in issuing the OSC, articulating the
applicable legal standard, or staying discovery while it decided the OSC.
We AFFIRM as to those matters. However, given the factual disputes
concerning NMAC’s knowledge, we REVERSE and REMAND for further
proceedings consistent with this decision.
7
(...continued)
We leave all of these issues to the bankruptcy court.
31
