2. If the Personal bankruptcy Password Precludes the fresh new FDCPA and you can/or Preempts the fresh new FCCPA
Rushmore argues you to definitely Plaintiffs’ FDCPA and you will FCCPA claims is actually precluded and you may preempted by Bankruptcy Code once the says was “in line with the false impression you to definitely Rushmore was prohibited off which have people post-launch communications having Plaintiff[s].” (Doctor. 33 in the 11). Rushmore depends on several present rulings inside the Prindle v. Carrington Mortgage Characteristics, LLC , Instance Zero. 3:13-cv-1349-MMH-PDB (M.D. Fla.). eleven
“Area 524 of one’s Bankruptcy Code operates because the a post-discharge injunction against the distinct costs discharged during the case of bankruptcy and are thus the fresh embodiment of the Code’s fresh start concept.” Within the re also Nibbelink , 403 B.R. 113, 119 (Bankr. Meters.D. Fla. 2009) (pointing out Sturdy v. U.S. , 97 F.3d 1384, 1388-89 (11th Cir. 1996)). Section 524 provides in associated region:
(a) A discharge inside an instance below so it term- (1) voids any wisdom any moment gotten, on the the total amount you to definitely including view is a determination of one’s individual liability of one’s borrower in terms of one financial obligation discharged under area 727, 944, 1141, 1228, otherwise 1328 associated with the identity, although launch of for example financial obligation is actually waived;
(2) works given that an injunction resistant to the commencement or continuation regarding a keen action, the utilization of procedure, otherwise an act, to collect, recover or counterbalance these personal debt since the a personal accountability from the borrower, no matter if release of instance obligations try waived.
eleven You.S.C. § 524(a). Brand new provision is construed broadly in order to protect a borrower off personal accountability and comes with casual range and you may judicial steps. Come across Matter of Stoneking , 222 B.R. 650, 652 (Bankr. Meters.D. Fla. 1998). Section 524(a) was designed to “guarantee that shortly after an obligations was discharged, the brand new borrower are not stressed in any way to repay they.” Id. (citing H.R. Rep., No. 595, 95th Cong., initially Sess. 364 (1977)).
House Condition Bank , 501 U
Although not, the new bankruptcy proceeding release extinguishes merely a great debtor’s individual responsibility. Come across Johnson v. S. 78, 83 (1991) (holding one to once the personal bankruptcy discharge extinguishes one “form regarding enforcing a declare-namely, a hobby up against the debtor in personam,” it departs “intact some other-namely, a task up against the debtor in the rem”). A guaranteed creditor’s “straight to foreclose with the mortgage endures otherwise passes through this new bankruptcy” and you may remains enforceable below county rules. Id. within 83. “The discharge injunction doesn’t prohibit all the interaction anywhere between a collector and you will debtor-only those designed to gather, get well or offset such debt because the your own liability regarding the new borrower.” For the re also Gill , 529 B.R. 31, 37 (Bankr. W.D.Letter.Y. 2015) (internal quotations and you can citations excluded). ” Prindle Tr. on 18.
Before Judge details whether or not the Case of bankruptcy Password precludes and you can/otherwise preempts the brand new FDCPA and you can FCCPA, it must tackle a threshold question maybe not within Prindle : does the fresh § 524(j) exemption into the launch injunction also incorporate right here? 13
Sellers’s mom’s domestic as opposed to end up being evicted. (Doc. 37-step one during the step 3 ¶ 7). Therefore, whenever Rushmore sent the mortgage comments while it began with 2014, the house or property was not Plaintiffs’ dominant household along with not come for a long time. Cf. Prindle Tr. at 19 (“For this reason, the new communications off an excellent lienholder trying payment, so long as this new debtor will continue to are now living in the home , is permissible beneath the Bankruptcy proceeding Code.” (stress added)); From inside the lso are Lemieux , 520 B.R. 361, 368-69 (Bankr. D. Size. 2014) (locating the secure harbor provided by § 524(j) try unavailable so you can defendants where “[t]he . . . property wasn’t the newest [plaintiffs’] dominating home for more than per year by the time [the brand new defendants] sent 
the insurance coverage mailing”); When you look at the re Nordlund , 494 B.Roentgen. 507, 521 (Bankr. Elizabeth.D. Cal. 2011) (“Point 524(j) cannot incorporate here just like the property was not new debtors’ dominating home when [the brand new defendant] sent the newest observe, the fresh new page, in addition to statements. The new debtors got vacated the property on , almost one month before the financial obligation recognition observe.”).