In In re Culpepper, — B.R. —-, 2012 WL 5395935 (Bkrtcy.D.Or. 2012), Judge Dunn denied a Bank’s MSJ as to an alleged discharge violation arising out of efforts to collect discharged debts surrounding a promissory note related to a deed of trust on Ms. Culpepper’s residence property. You know how it might turn out when Judge Dunn began his opinion by quoting Cool Hand Luke, ““What we’ve got here is failure to communicate.” Spoken by Strother Martin as Captain, Road Prison 36 in the movie Cool Hand Luke.”. The Bank’s witness testified that the repeated telephone calls that Ms. Culpepper was receiving were part of a program developed by Wells Fargo to respond to concerns by the federal Office of the Comptroller of the Currency (“OCC”) that too many foreclosures were occurring and a specific directive from the OCC to larger banks to keep borrowers informed as to the status of foreclosure proceedings and available alter-natives. Available alternatives included loan modifications, “short sales,” granting deeds in lieu of foreclosure or accepting cash in exchange for consenting to foreclosure (“cash for keys”). Although all four Bank representatives in the Transcribed Calls were knowledgeable, professional and courteous in their communications to Ms. Culpepper, none of them offered her any of the possible alternatives to foreclosure. In fact, “Rene” advised Ms. Culpepper that she did not qualify for a loan modification. The Court found that the repeated calls by the Bank for loan modification were, in essence, debt collection calls in violation of the discharge injunction.
When Ms. Culpepper filed her bankruptcy case, she declared in her Statement of Intent that she in-tended to surrender the Residence Property. If she had held to that intent, we probably would not be here. Yet, virtually in conjunction with her bankruptcy filing, Ms. Culpepper initiated efforts to obtain a modification of the Loan and retain the Residence Property. In fact, she filed three different applications with Wells Fargo in attempts to obtain a Loan modification, twice after her discharge had been entered. In so doing, she opened the door to further communications with Wells Fargo. However, by the end of 2010, her efforts seeking to obtain a modification of the Loan had ceased, and she and her husband had been locked out of the Residence Property. ¶ Thereafter, Ms. Culpepper received over a hundred calls from Wells Fargo. Unlike the court in Henry v. Assoc. Home Equity Serv ., Inc. (In re Henry), 266 B.R. 457, 470 (Bankr.C.D.Cal. 2001), I am not pre-pared to find that “[the volume of telephone calls alone compels a finding that [the concerned mortgage lien creditor] was harassing the debtors in violation of the … discharge injunction.” However, I do find the history and volume of calls to be relevant to deciding the Contempt Motion. In particular, I find that the evidence provided by the Transcribed Calls is critical. ¶ Mr. Dolan testified that the calls Ms. Culpepper received were part of Wells Fargo’s program to advise its customers facing foreclosure as to the status of foreclosure proceedings and offer them the opportunity to discuss available alternatives. So far, so good. But what “alternatives to foreclosure” actually were available to Ms. Culpepper? There is no evidence in the record that Wells Fargo considered a “short sale” of the Residence Property or that a “short sale” option was available to Ms. Culpepper. If a Wells Fargo representative had advised Ms. Culpepper that the calls would stop if she would sign a deed in lieu of foreclosure for the Residence Property, based on the evidence presented at the Hearing, I find that Ms. Culpepper would have accepted that offer. No such offer was made to her. She would have been even more willing to accept a “cash for keys” offer, but again, no such offer was made to her. Ultimately, based on the evidence presented, I find that the only alternative to foreclosure that Wells Fargo wanted to discuss with Ms. Culpepper was a further attempt(s) to obtain a modification of the Loan. If Ms. Culpepper entered into a Loan modification agreement with Wells Fargo, its effect would be to revive all, or at least a portion, of her discharged debt to the bank. ¶ The Transcribed Calls are important for a number of reasons: First, they establish that the Wells Fargo representatives with whom Ms. Culpepper spoke (Laudio, Rene, Armando and CJ) were all knowledgeable, intelligent and professional. They were not “robocallers,” with neither the authority nor the capacity to do anything other than speak the words of Wells Fargo’s “mini-Miranda” script. In fact, Armando advised Ms. Culpepper that he was a specialist in foreclosure and bankruptcy. See Exhibit 10, pp. 2–3. I note that Armando also stated initially that “the purpose of this call is to give you a status of your loan modification.” See id. at p. 1. (Previously, Rene had advised Ms. Culpepper that she did not qualify for a loan modification, for which she previously had applied. See Exhibit 9, p. 1.) I find that there had to be a purpose to the calls other than to recite mindlessly to Ms. Culpepper that the Loan was in active foreclosure but that no foreclosure sale date had yet been scheduled. I further find that the purpose of the calls was to engage her in discussion about the process for modifying the Loan with the objective of encouraging her to make a further Loan modification application. ¶ Second, in each of the Transcribed Calls, Ms. Culpepper clearly advised Wells Fargo’s representatives that she was not interested in pursuing a Loan modification, and she wanted the calls to stop. Her anguish and frustration during the Transcribed Calls were palpable. ¶ Third, in response, Wells Fargo’s representatives told Ms. Culpepper that if she wanted the calls to stop, she needed to send a written request. ¶ . . . In these circumstances, I find that Wells Fargo knew that the discharge injunction applied with re-spect to Ms. Culpepper, and I find that Wells Fargo intended to continue to route calls to Ms. Culpepper in an effort to reinstate all of some of a discharged debt, i.e., the Loan, through a loan modification, after Ms. Culpepper had clearly advised knowledgeable, thinking Wells Fargo employees that she was not interested in pursuing a modification of the Loan with Wells Fargo and wanted the calls to stop. Accordingly, I conclude that Ms. Culpepper has established by clear and convincing evidence that Wells Fargo violated the discharge injunction under § 524(a)(2).