Educational Financial Service v. Stephanie Henry ( 2019 )


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  •         IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 18-20809
    FILED
    October 17, 2019
    Lyle W. Cayce
    In the Matter of: STEPHANIE MARIE HENRY                            Clerk
    Debtor
    STEPHANIE MARIE HENRY, formerly known as Stephanie Marie
    Henschel,
    Appellee
    v.
    EDUCATIONAL FINANCIAL SERVICE, A Division of Wells Fargo Bank,
    N.A.,
    Appellant
    Appeal from the United States Bankruptcy Court
    for the Southern District of Texas
    Before KING, HIGGINSON, and DUNCAN, Circuit Judges.
    PER CURIAM:
    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,
    No. 18-20809
    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
    1  The Bankruptcy Code says that some—but not all—student loans are not
    dischargeable unless failing to discharge the loan “would impose an undue hardship on the
    debtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8).
    2
    No. 18-20809
    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 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
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    No. 18-20809
    Court’s decision in Epic Systems Corp. v. Lewis, 
    138 S. Ct. 1612
    (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” the Bankruptcy Code. The
    bankruptcy court certified its order for an interlocutory appeal directly to this
    court under 28 U.S.C. § 158(a)(3) and (d)(2)(A). Subsequently, we authorized
    such an appeal pursuant to § 158(d)(2)(A).
    II.
    “The Federal Arbitration Act requires courts to enforce covered
    arbitration agreements according to their terms.” Lamps Plus, Inc. v. Varela,
    
    139 S. Ct. 1407
    , 1412 (2019). But the FAA is not the only statute on the books,
    and its “mandate may be overridden by a contrary congressional command.”
    Shearson/Am. Express, Inc. v. McMahon, 
    482 U.S. 220
    , 226 (1987). “A party
    seeking to suggest that two statutes cannot be harmonized, and that one
    2 To resolve this appeal, we do not need to address whether the bankruptcy court’s
    interpretation of the arbitration provision was correct, but it is worth noting that other courts
    have held that disputes about allegedly improper debt collection are at least “related” to the
    underlying debt. See Koch v. Compucredit Corp., 
    543 F.3d 460
    , 466 (8th Cir. 2008) (concluding
    that “[a] dispute over the collection of a debt incurred under the credit agreement is a
    ‘controversy arising from or related to’” that agreement); Carbajal v. H&R Block Tax Servs.,
    Inc., 
    372 F.3d 903
    , 905 (7th Cir. 2004) (Easterbrook, J.) (compelling arbitration of Fair Debt
    Collection Practices Act claims based on an arbitration agreement found in loan
    documentation).
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    No. 18-20809
    displaces the other, bears the heavy burden of showing a clearly expressed
    congressional intention that such a result should follow.” Epic 
    Sys., 138 S. Ct. at 1624
    (internal quotation marks omitted). Such an intent can be deduced
    from statutory text, legislative history, or “from an inherent conflict between
    arbitration and the statute’s underlying purposes.” 
    McMahon, 482 U.S. at 227
    .
    Applying McMahon, we have held that bankruptcy courts may decline to
    enforce arbitration clauses when two requirements are met. First, the
    proceeding must adjudicate statutory rights conferred by the Bankruptcy Code
    and not the debtor’s prepetition legal or equitable rights. In re Nat’l Gypsum
    Co., 
    118 F.3d 1059
    , 1069 (5th Cir. 1997). See also 10 Collier on Bankruptcy
    ¶ 9019.05 (16th ed. 2019) (“A trustee in bankruptcy has two kinds of causes of
    action: those inherited from the debtor and those granted by statute (the so-
    called avoiding powers).”). Second, bankruptcy courts may decline enforcement
    of arbitration agreements only if requiring arbitration would conflict with the
    purposes of the Bankruptcy Code. In re Gandy, 
    299 F.3d 489
    , 495 (5th Cir.
    2002) (citing Nat’l 
    Gypsum, 118 F.3d at 1067
    ). Those purposes include “the goal
    of centralized resolution of purely bankruptcy issues, the need to protect
    creditors and reorganizing debtors from piecemeal litigation, and the
    undisputed power of a bankruptcy court to enforce its own orders.” Nat’l
    
    Gypsum, 118 F.3d at 1069
    .
    Accordingly, in National Gypsum, we held that bankruptcy courts need
    not enforce agreements to arbitrate whether a creditor’s efforts to collect a debt
    violated a discharge order. 
    Id. at 1071.
    A debtor’s right to be free from collection
    efforts for discharged debts is a creature of the Bankruptcy Code. 11 U.S.C.
    § 524(a). An action to enforce such a right implicates an important bankruptcy
    policy, the ability of a bankruptcy court to enforce its own orders, such that
    requiring arbitration “would be inconsistent with the Bankruptcy Code.” Nat’l
    
    Gypsum, 118 F.3d at 1071
    .
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    No. 18-20809
    On appeal, we review whether a bankruptcy court was obliged to enforce
    an arbitration clause de novo. In re 
    Gandy, 299 F.3d at 494
    . If the FAA does
    not require a bankruptcy court to enforce an arbitration clause, then the
    bankruptcy court has discretion regarding whether to order arbitration, and
    “the exercise of that discretion is reviewable only for abuse.” 
    Id. III. Wells
    Fargo’s appeal presents a single issue: Does our holding in
    National Gypsum—that bankruptcy courts have discretion to refuse to compel
    arbitration in proceedings seeking enforcement of a discharge injunction—
    remain good law following the Supreme Court’s decision in Epic Systems? We
    conclude that it does.
    Under the rule of orderliness, “one panel of this circuit may not overturn
    another panel absent an intervening decision to the contrary by the Supreme
    Court or this court en banc.” United States v. Simkanin, 
    420 F.3d 397
    , 420 n.25
    (5th Cir. 2005). To overrule one of our precedents, a “Supreme Court decision
    must be more than merely illuminating with respect to the case before us.”
    Martin v. Medtronic, Inc., 
    254 F.3d 573
    , 577 (5th Cir. 2001). Instead, “a panel
    of this court can only overrule a prior panel decision if ‘such overruling is
    unequivocally directed by controlling Supreme Court precedent.’” 
    Id. (quoting United
    States v. Zuniga-Salinas, 
    945 F.2d 1302
    , 1306 (5th Cir. 1991)).
    Far from unequivocally directing us to overrule National Gypsum, Epic
    Systems shows that National Gypsum’s doctrinal foundation, i.e., McMahon,
    remains sound. For one thing, Epic Systems cites McMahon for support. 138 S.
    Ct. at 1627. For another, McMahon and Epic Systems apply essentially the
    same tests for determining whether a statute overrides the FAA’s command to
    enforce arbitration agreements according to their terms. In McMahon, the
    Court said that:
    6
    No. 18-20809
    Like any statutory directive, the Arbitration Act’s mandate may be
    overridden by a contrary congressional command. The burden is
    on the party opposing arbitration, however, to show that Congress
    intended to preclude a waiver of judicial remedies for the statutory
    rights at issue. If Congress did intend to limit or prohibit waiver of
    a judicial forum for a particular claim, such an intent “will be
    deducible from [the statute’s] text or legislative history,” or from
    an inherent conflict between arbitration and the statute’s
    underlying purposes.
    
    McMahon, 482 U.S. at 226-27
    (alteration in original) (citations omitted)
    (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 
    473 U.S. 614
    , 628 (1985)). While the Supreme Court’s decision in Epic Systems has a
    different tone, the test it employs is substantially the same as McMahon’s:
    Even if the Arbitration Act normally requires us to enforce
    arbitration agreements like theirs, the employees reply that the
    [National Labor Relations Act] overrides that guidance in these
    cases and commands us to hold their agreements unlawful yet.
    This argument faces a stout uphill climb. When confronted
    with two Acts of Congress allegedly touching on the same topic,
    this Court is not at liberty to pick and choose among congressional
    enactments and must instead strive to give effect to both. A party
    seeking to suggest that two statutes cannot be harmonized, and
    that one displaces the other, bears the heavy burden of showing a
    clearly expressed congressional intention that such a result should
    follow. The intention must be clear and manifest.
    Epic 
    Sys., 138 S. Ct. at 1623-24
    (citations and internal quotation marks
    omitted). The difference between a “deducible” congressional intent, 
    McMahon, 482 U.S. at 227
    , and a “clear and manifest” intent, Epic 
    Sys., 138 S. Ct. at 1624
    ,
    is not an unequivocal direction to overrule our precedent.
    Wells Fargo argues that Epic Systems altered McMahon, because the
    former “expressly rejected the use of legislative history.” While Epic Systems
    says that “legislative history is not the law,” Epic 
    Sys., 138 S. Ct. at 1631
    , that
    statement clarifies that the legislative history upon which the dissent relies
    does not trump the “[l]inguistic and statutory context” identified by the
    7
    No. 18-20809
    majority. 
    Id. That is
    not the same as saying that legislative history can never
    be relevant when interpreting a statute.
    Even if Epic Systems’s comments regarding legislative history partially
    overrule McMahon, that change would not affect the validity of National
    Gypsum, because National Gypsum did not rely on legislative history. Instead,
    in determining whether the FAA’s requirements were overridden, National
    Gypsum looked to the purposes of the Bankruptcy 
    Code. 118 F.3d at 1069
    . And
    statutory purpose remains a valid tool for determining whether a given statute
    displaces the FAA. See Epic 
    Sys., 138 S. Ct. at 1627
    (“Union organization and
    collective bargaining in the workplace are the bread and butter of the NLRA,
    while the particulars of dispute resolution procedures in Article III courts or
    arbitration proceedings are usually left to other statutes and rules . . . .”).
    Consequently, we conclude that National Gypsum’s application of McMahon
    remains good law following Epic Systems.
    IV.
    For the foregoing reasons, we AFFIRM.
    8