In In re Atwood, Slip Copy, 2011 WL 1331974 (Bkrtcy.D.N.M. 2011), Judge Jacobvitz followed Seventh Circuit authority, instead of the Ninth Circuit’s decision in Walls, to hold that the Bankruptcy Code did not provide the exclusive remedy for a debt collector’s post-petition conduct violating the automatic stay. 


Defendants assert that Plaintiff’s exclusive remedy for the Defendants’ alleged post-petition collection activities is provided under the Bankruptcy Code such that Plaintiff cannot also maintain a claim under the FDCPA premised on the same conduct. There is a split in circuit court authority on this issue.  [FN4. Compare Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir.2002)(holding that debtor’s remedy for alleged violations of the discharge injunction is found under the Bankruptcy Code so that debtor could not also pursue a claim under the FDCPA) with Randolph, 368 F.3d at 732 (finding that 11 U.S.C. § 362 and the FDCPA overlap, but are not incompatible so that the Bankruptcy Code does not provide the exclusive remedy; debtor could maintain an action under the FDCPA premised on post-bankruptcy debt collection activities). See also, Gunter v. Columbus Check Cashiers, Inc. (In re Gunter), 334 B.R. 900, 903 (Bankr.S.D.Ohio 2005)(recognizing that “[t]here is a circuit split on the issue of whether the Bankruptcy Code precludes FDCPA claims.”). The Tenth Circuit has not considered this issue. Other courts con-sidering this issue are divided. See, e.g., Degrosiellier v. Solomon & Solomon, P.C., 2001 WL 1217181, *5 (N.D.N.Y. Sept. 27, 2001)(holding that plaintiff could not maintain claims pursuant to the FDCPA when the claims were “based directly on the premise that defendant violated the Bankruptcy Code by seeking payment from her on a debt discharged in bankruptcy”); Jones v. Wolpoff & Abramson, L.L.P., 2006 WL 266102, *2 (E.D.Pa. Jan. 31, 2006)(following Walls and concluding that plaintiff’s claim under the FDCPA was “preempted by the Bankruptcy Code”); Miller v. Ameriquest Mortgage Co. ( In re Laskowski), 384 B.R. 518, 527–528 and n. 9 (Bankr.N.D.Ind.2008) (agreeing with the reasoning of Randolph, and noting that “courts not under the jurisdiction of the Ninth Circuit have been persuaded.. that the Bankruptcy Code neither precludes claims under the FDCPA nor impliedly repeals the FDCPA)(collecting cases); Gunter, 334 B.R. at 904 (following Randolph ).  In Randolph, the Seventh Circuit reached the opposite conclusion when it examined the question of whether a debtor could pursue a claim under the FDCPA when the alleged actions that formed the basis of the debtor’s claim under the FDCPA would constitute a willful stay violation under 11 U.S.C. § 362 of the Bankruptcy Code. The Seventh Circuit compared the FDCPA and 11 U.S.C. § 362(h) side by side and found that while the two statutes overlap, “[i]t is easy to enforce both statutes, and any debt collector can comply with both simultaneously.” Randolph, 368 F.3d at 730. Thus the Randolph court rejected the argument that the Bankruptcy Code provides a comprehensive remedial scheme and found that the Bankruptcy Code did not “work an implied repeal of FDCPA” so that the debtor could maintain a claim under the FDCP based on a post-bankruptcy demand for payment. Id. at 732.¶  The Court is persuaded by the reasoning of the Seventh Circuit. The FDCPA and the willful stay violation provision under the Bankruptcy Code are both aimed at inappropriate debt-collection activity; yet they have different standards and different reme-dies. Both statutes are enforceable because “the ‘operational differences’ between the statutes do not ‘add up to irreconcilable conflict.’ “Enforcement of the automatic stay provisions under the Bankruptcy Code is not Plaintiff’s exclusive remedy for collection activity that could also constitute a violation of the FDCPA.  However, as explained below, this Court lacks jurisdiction over Plaintiff’s claims under the FDCPA and state law.


Judge Jacobvitz then found that the Bankruptcy Court did not have jurisdiction over the debtor’s FDCPA claim: 



The factual allegations contained in Plaintiff’s Complaint concern Defendants’ post-petition actions in serving upon Plaintiff a summons and complaint from a pre-petition debt collection action initiated in state court despite having actual notice of Plaintiff’s pending bankruptcy case.  Claims for damages under 11 U.S.C. § 362(k) based on alleged actions taken post-petition in violation of the automatic stay fall squarely within this Court’s core jurisdiction. Plaintiff’s claims under the FDCPA, the NM–UPA, and New Mexico common law do not raise substantive rights created under bankruptcy law, can exist independently of a pending bankruptcy case, and are not otherwise defined as core proceedings under 28 U.S.C. § 157(b)(2).  Thus, for the Court to have jurisdiction over those claims, they must fall within the Court’s non-core, “related-to” jurisdiction.    Most courts that have considered this issue have found that the bankruptcy court does not have subject matter jurisdiction over a Chapter 7 debtor’s post-petition claims for violation of the FDCPA. This Court agrees. The test for determining whether the bankruptcy court has, non-core, “related-to” jurisdiction over a proceeding is “ ‘whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.’ “  A factual nexus between the alleged conduct and the Plaintiff’s bankruptcy case is insufficient, in and of itself, to confer “related to” jurisdiction on the Bankruptcy Court to hear a claim under the FDCPA.    Here, Plaintiff’s factual assertions in support of her claims under the FDCPA, the NM–UPA and New Mexico common law relate to post-petition actions. Therefore, such claims do not constitute property of her bankruptcy estate, and any recovery, should she prevail on these claims, would have no conceivable impact on the administration of her Chapter 7 bankruptcy estate.   These claims, therefore, do not fall within the Court’s limited, “related to” non-core jurisdiction.