BEN BARRY, Bankruptcy Judge.
Before the Court is the debtor's Motion For Contempt For Violation of Discharge Order, filed on January 19, 2017. In his motion, the debtor asks the Court to find that Ocwen Loan Servicing, LLC [Ocwen] and Fay Servicing LLC [Fay] violated the bankruptcy code's discharge injunction (11 U.S.C. § 524(a)(2)), the Arkansas Fair Debt Collection Practices Act (Ark. Code Ann. § 17-24-504), and the Federal Fair Debt Collection Practices Act (15 U.S.C. § 1692c). After a number of continuances, the Court set the motion for hearing on November 21, 2017. Prior to the hearing, on November 16, 2017, the Court granted in part Ocwen's and Fay's respective motions for summary judgment and dismissed the debtor's fair debt collection practices claims for lack of jurisdiction.
The discharge injunction under § 524(a)(2) replaces the automatic stay that is in effect during a debtor's bankruptcy case and operates as a permanent injunction against the enforcement of any discharged debts when the debtor receives a discharge. In re Waswick, 212 B.R. 350, 352 (Bankr. D.N.D. 1997). A willful violation of the injunction warrants a finding of civil contempt. In re Goodfellow, 298 B.R. 358, 361 (Bankr. N.D. Iowa 2003) (citing In re Waswick, 212 B.R. at 352); see also Koehler v. Grant, 213 B.R. 567, 570 (B.A.P. 8th Cir. 1997); Gakinya v. Columbia College (In re Gakinya), 364 B.R. 366, 370 (Bankr. W.D. Mo. 2007) (violations of discharge injunction punishable by contempt). The burden is on the debtor to show by clear and convincing evidence that the creditor (1) had knowledge of the debtor's discharge and (2) willfully violated the discharge order by continuing its collection activities. In re Waswick, 212 B.R. at 352; Koehler, 213 B.R. at 570. A brief history of the case is warranted. The debtor filed his voluntary chapter 7 petition on April 7, 2009. At the time, Bank of America held the mortgage on the debtor's residence. The debtor stated on his Statement of Intention the he would "retain and pay" Bank of America without indicating that he would enter into a reaffirmation agreement for the debt. The debtor received his discharge on July 13, 2009.
After the mortgagee's deed was rescinded, Ocwen again began sending account statements and delinquency information to the debtor. In June 2016, Bank of America began a second foreclosure procedure against the property. On July 12, 2016, shortly after the second foreclosure procedure started, Ocwen transferred the servicing of the mortgage loan to Fay. Despite the transfer, Ocwen sent another account statement to the debtor on July 18, 2016, and updated delinquency information on August 1, 2016. On September 14, 2016, a second mortgagee's deed was entered transferring interest in the property to Christiana Trust as trustee of ARLP Trust 5. On the same day, Fay sent the debtor an escrow statement and a "second and final notice" for the debtor to provide hazard insurance information to Fay with the statement that the debtor "must pay us for any period during which the insurance we buy is in effect for which you do not have insurance."
On October 19, 2016, the debtor filed his motion to reopen his bankruptcy case.
As stated earlier, the burden is on the debtor to show by clear and convincing evidence that the creditor (1) had knowledge of the debtor's discharge and (2) willfully violated the discharge order by continuing its collection activities. Although the Court has ample evidence with which to consider Ocwen's and Fay's alleged violative collection activity, the Court has no evidence whatsoever-much less "clear and convincing" evidence-that either Ocwen or Fay had knowledge of the debtor's discharge, the first of the two elements that must be proven. The debtor testified a number of times that whenever he would call Ocwen or Ocwen would call him, he told Ocwen that he had filed bankruptcy.
Having failed to meet his burden of proving by clear and convincing evidence that Ocwen or Fay had knowledge of the debtor's discharge, the Court must deny the debtor's motion to hold Ocwen and Fay in contempt for violating the Court's discharge order.
IT IS SO ORDERED.
Fay included a similar statement on its mailings: "To the extent your original obligation was discharged, or is subject to an automatic stay under the United States Bankruptcy Code, this is being provided for informational purposes only and does not constitute an attempt to collect a debt or impose personal liability."