Marc Barreca, U.S. Bankruptcy Court Judge.
This matter came before me on motions for summary judgment by the Plaintiff, Randy Sanders ("
Following oral argument on May 23, 2018, I took the matter under advisement. Having considered the pleadings, evidence, and arguments of counsel, and otherwise being fully advised, I deny Sanders' motion for summary judgment and I grant AllianceOne's motion for summary judgment in part.
I have jurisdiction over the parties and the subject matter of this adversary proceeding pursuant to 28 U.S.C. §§ 157 and 1334. Venue is proper in the Western District of Washington pursuant to 28 U.S.C. § 1409.
Prior to Sanders' current Chapter 13 bankruptcy, he filed a Chapter 7 petition (the "
The Proofs of Claim include amounts for various fines, costs and interest associated with sixteen criminal convictions, six entered in Whatcom County Superior Court (the "
AllianceOne seeks to collect $22,709.38, consisting of fines, costs and interest derived from six criminal convictions in Superior Court. For each criminal conviction there is a sentencing order (the "
Each Sentencing Order imposes a different assortment of fines and costs, and each includes some variation of the following:
Victim Fund Assessment $500 Criminal Filing Fee $200 Court Appointed Attorney Fee $300-$600 DNA Collection Fee $100 VUCSA Fine $1000
Consistently, the Sentencing Orders include the following provisions that impose collection costs and interest:
Dkt. No. 69-7. Additionally, all of the Sentencing Orders include a court finding that the defendant has the financial resources to pay all legal financial obligations. Although some, but not all, of the sentencing documents include a provision permitting a later court order that could impose restitution or other legal financial obligations, neither party has offered any proof of additional obligations being imposed by the Superior Court.
The Superior Court debts were referred to AllianceOne for collection on June 15, 2015. The referrals were memorialized in the Collection Referral signed by the county clerk. Each Collection Referral includes a total judgment amount, comprised of the following line items: Principal Penalty, Assigned Interest, Interest and Collection Fee. The amounts in the Collection Referral, specifically the Principal Penalty, do not directly match the Sentencing Order and it is unclear how either the county clerk or AllianceOne arrived at the exact numbers.
For each of the six Superior Court convictions there is an Accounting Summary providing for the following line items: Fine/Fee, Restitution, and Interest. Clouding the record further, the amounts provided on each Accounting Summary do not match the corresponding amounts on either the Sentencing Order or the Collection Referral. Additionally, some of the Accounting Summaries include restitution charges of $100 or $200, an amount not reflected in any of the Sentencing Orders.
One possible source of the discrepancies in the factual record is the "Offender Supervision Intake Fee" alluded to by AllianceOne at oral argument and provided for in the Declaration of Tim Bolden (Dkt. No. 73-2, Exs. K-P). The fee, amounting to $100, is cited under RCW 9.94A.780 and is not specifically imposed in the Sentencing Orders.
AllianceOne seeks to collect $7,209.62, consisting of fines, costs and interest derived from ten criminal convictions in Municipal Court. There is a Sentencing Order and Collection Referral that corresponds to each conviction.
Each Sentencing Order imposes different fines and costs, but each include some variation of the following: Penalty/Fine, Warrant Fee, Attorney Fee, Conviction Fee, and a Book/Jail/Tour Fee. In contrast to the Superior Court Sentencing Orders, none of the Municipal Court Sentencing Orders expressly impose collection costs or interest.
Similarly to the Superior Court documentation, the Municipal Court Collection Referrals do not track the fines and costs imposed in the Sentencing Orders. More specifically, the line item "Principal Penalty" listed in each Collection Referral is $50-$160 higher than the amounts imposed in each corresponding Sentencing Order. The source of the discrepancy is unclear.
Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby,
"[W]hen parties submit cross-motions for summary judgment, each motion must be considered on its merits." Fair Hous. Council of Riverside Cnty, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (internal quotes and citations omitted). Thus, "the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard." Id. (quoting Wright, et al., Federal Practice and Procedure § 2720, at 335-36 (3d ed. 1998)). If, however, cross-motions are before the court at the same time, the court is obliged to consider the evidence proffered by both sets of motions before ruling on either one. Id. at 1134.
A debt is excepted from discharge under § 523(a)(7) "to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss ..." 11 U.S.C. § 523(a)(7). Essentially, there are three requirements for a debt to be excepted from discharge under § 523(a)(7): (1) the debt must be for a fine, penalty, or forfeiture; (2) the debt must be payable to and for the benefit of a governmental unit
Creditors seeking an exception to discharge under § 523(a) bear the burden of proof by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Ordinarily, exceptions to discharge are strictly construed against the creditor and interpreted liberally to allow debtors a fresh start. In re Bugna, 33 F.3d 1054, 1059 (9th Cir. 1994). In contrast to the narrow interpretation applied to other subsections of § 523(a), the Supreme Court interpreted § 523(a)(7) to create "a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures." Kelly v. Robinson, 479 U.S. 36, 51, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986).
In Kelly, the Supreme Court concluded that restitution imposed in a criminal sentence was nondischargeable pursuant to § 523(a)(7). The Supreme Court explained:
Id. at 47, 107 S.Ct. 353. In reaching its conclusion, the Supreme Court broadly held "that § 523(a)(7) preserves from discharge any condition a state criminal court imposes as part of a criminal sentence." Id. at 50, 107 S.Ct. 353 (emphasis added). Unperturbed by the statutory language requiring that the debt not be compensation for actual pecuniary loss, the Kelly court reasoned that criminal proceedings inherently focus on the State's interest in rehabilitation and punishment, and therefore "[t]hose interests are sufficient to place restitution orders within the meaning of § 523(a)(7)." Id. at 53, 107 S.Ct. 353.
A number of other courts have applied the rationale in Kelly to determine that other costs imposed as part of the criminal sentence are also excepted from discharge. See e.g., Lopez v. First Judicial Dist. of Pa. (In re Lopez), 579 Fed.Appx. 100, 103 (3rd Cir. 2014) (holding that every cost imposed as part of a state criminal sentence is nondischargeable subject only to the two qualifying phrases that the cost be "to and for the benefit of a governmental unit" and "not be compensation for actual pecuniary loss"); Thompson v. Virginia (In re Thompson), 16 F.3d 576, 581 (4th Cir. 1994) (holding that costs of prosecution assessed under state law were nondischargeable even though the costs were not directly imposed in the criminal sentence); Tennessee v. Hollis (In re Hollis), 810 F.2d 106, 108 (6th Cir. 1987) (determining that costs imposed as a condition of probation were nondischargeable even though state law provided that costs were not considered part of the penalty). Notably, the Thompson court reasoned that costs resulting from a criminal conviction, unlike traditional pecuniary losses in a civil case, may in certain circumstances be satisfied by the performance of community service, and may result in criminal consequences for nonpayment. Thompson, 16 F.3d at 580.
The Ninth Circuit has considered whether costs awarded in attorney disciplinary proceedings are excepted from discharge under § 523(a)(7). See State Bar of California v. Taggart (In re Taggart), 249 F.3d 987 (9th Cir. 2001); State Bar of California v. Findley (In re Findley), 593 F.3d 1048 (9th Cir. 2010). In Taggart, the Ninth Circuit concluded that "costs" imposed on an attorney under California law were not "fines" or "penalties," and therefore were not excepted from discharge under § 523(a)(7). Taggart, 249 F.3d at 994. In reaching its conclusion, the Ninth Circuit analyzed the individual statutes imposing the fees, the legislative history, and the overall statutory scheme, leading the Ninth Circuit to conclude that the fees were not intended to be "fines" or "penalties," but rather compensation for "actual pecuniary loss." Id. at 994.
In response to the Taggart decision, the legislature in California amended the statute, adding language that expressly labeled the costs imposed as "penalties, payable to and for the benefit of the State Bar of California ... to promote rehabilitation and to protect the public." BPC § 6086.10(e). In Findley, the Ninth Circuit addressed the amended statute, determining that the added language undermined
Id. Although neither the opinions in Taggart nor Findley address the dischargeability of fines, costs and fees resulting from a criminal conviction, these decisions highlight the potential importance of interpreting the statutory scheme and the legislative background of the laws imposing financial obligations. Moreover, the opinions in Taggart and Findley indicate that even costs imposed, in part, to compensate a party for expenses may be excepted from discharge under § 523(a)(7), provided the statutes imposing those costs are intended to be penal in nature.
Under Washington State law, a Legal Financial Obligation ("
RCW 9.94A.030(31).
Regardless of whether an LFO is discretionary or mandatory, Washington State permits courts to employ various means to ensure payment, often with punitive consequences for the defendant beyond normal
As discussed infra, the Supreme Court's decision in Kelly creates a broad exception to discharge for all financial obligations imposed by the sentencing judge. Pursuant to Kelly's holding, it appears that all LFOs imposed in the Superior Court Sentencing Orders are nondischargeable in that § 523(a)(7) "preserves from discharge any condition a state court imposes as part of the criminal sentence." Kelly, 479 U.S. at 50, 107 S.Ct. 353 (emphasis added).
The Ninth Circuit does not appear to have clarified whether under Kelly all financial obligations imposed in a criminal judgment are inherently nondischargeable or whether courts must also analyze the statutory scheme under which the financial obligations arise. However, even if Kelly and its progeny require courts to analyze the statutory scheme, the LFOs imposed in the Superior Court Sentencing Orders are nonetheless nondischargeable. The Washington State criminal statutory scheme permits courts to employ punitive repercussions on a criminal defendant following nonpayment of LFOs, including imprisonment, imposition of the suspended sentence, and modification of the original sentence. Furthermore, the legislative history pertaining to the collection of LFOs indicates an intent that the imposition of LFOs perform a penal purpose. During the 2011 amendments to the Washington statutes that allow the collection of LFOs, the legislature explained its general approach: "[T]he legislature believes that payment of legal financial obligations is an important part of taking personal responsibility for one's actions. The legislature therefore, supports the efforts of county clerks in taking collection action against those who do not make a good faith effort to pay." Laws of 2011, ch. 106, § 1.
The fact that court costs imposed in the Superior Court Sentencing Orders do not function like ordinary civil debt is also indicative of a punitive purpose and leads to a conclusion that courts costs are not "compensation for pecuniary loss" within the meaning of § 523(a)(7). See, e.g. Thompson, 16 F.3d at 580 (concluding that court costs imposed in a criminal case "bear little resemblance to what normally constitute[s] ... recovery for pecuniary loss in a civil case."). Unlike nonpayment of ordinary civil debt, nonpayment of LFOs in Washington may result in a criminal
Therefore, I conclude that all financial obligations imposed in the Superior Court Sentencing Orders — including the Victim Assessment, the Criminal Filing Fee, the DNA Collection Fee, Court Appointed Attorney Fees, Collection Costs and Interest — are nondischargeable under § 523(a)(7).
There appears to be a factual dispute as to whether AllianceOne is seeking to collect any debts for restitution. The dispute originates in the Superior Court Accounting Summaries, some of which appear to impose charges for restitution. It is unclear why the Accounting Summaries reflect these charges while the Sentencing Orders do not. If restitution was in fact charged to Sanders, by either later court order or under a statutory basis, AllianceOne has not provided such information to me, and therefore has not carried its burden on summary judgment of proving those charges are either owed by Sanders or nondischargeable.
Similarly, it remains unclear to what extent the Proofs of Claim include charges for Offender Supervision Intake Fees, which AllianceOne cites under RCW 9.94A.780. The statute provides:
RCW 9.94A.780 (emphasis added). Although Offender Supervision Intake Fees are imposed by the county clerk and not the court, the purpose of such fees is to pass the cost of collecting LFOs on the criminal defendant. Because each Superior Court Sentencing Order provides that "[t]he defendant shall pay the cost of services to collect unpaid legal financial obligations, which include monitoring fees for
Like the Superior Court Sentencing Orders, the Municipal Court Sentencing Orders impose various costs on Sanders, some of which appear to be mandatory LFOs and others discretionary LFOs. For the same reasons I conclude that the LFOs imposed under the Superior Court Sentencing Orders are nondischargeable, I also conclude that all LFOs imposed by the Municipal Court Sentencing Orders are nondischargeable, including the Penalty/Fine, Warrant Fee, Attorney Fee, Conviction Fee, and Book/Jail/Tour Fee.
Interest charged on Sanders' Municipal Court debt is statutorily imposed and not explicitly imposed by the sentencing judge.
The only notable difference between the statute at issue in Cunningham and the statute at issue here is the date on which the interest begins to accrue. In Cunningham, which analyzed a statute applying only to superior courts, interest automatically accrued from the date of judgment. Conversely, the statute at issue here, RCW 35.20.220, applies only to municipal courts, and imposes interest on the date the debt is assigned to collection. Despite the difference, the Cunningham analysis applies to the present case because interest imposed on municipal court debts, like interest imposed on superior court debts, automatically accrues and is a statutory result of a criminal conviction. The fact that the triggering event differs is irrelevant to the analysis. I agree with the Cunningham analysis and therefore I conclude that the interest imposed on the Municipal
AllianceOne seeks to recover collection fees assessed under RCW 3.02.045, which provides that "[c]ourts of limited jurisdiction may use collection agencies" and that "[t]he court may assess as court costs the moneys paid for remuneration for services." RCW 3.02.045 (emphasis added). Based on a plain reading of the statute, it appears to grant municipal courts the discretion to impose collection costs as a "court cost" owed by the criminal defendant. However, as the Sentencing Orders do not reflect any such imposition, I am unable to determine how those charges were in fact imposed on Sanders and whether those charges would in turn be nondischargeable.
Although AllianceOne has provided Collection Referrals for each Municipal Court conviction and the Collection Referrals do provide for collection costs under RCW 3.02.045, AllianceOne does not present any evidence that these documents should be construed as orders imposed by the sentencing court and not merely potentially inaccurate summaries of outstanding debt by the court clerk. AllianceOne therefore has not met its burden, on summary judgment, of proving the costs under RCW 3.02.045 were imposed by the sentencing court as part of the punishment or that they should otherwise be nondischargeable under the statutory scheme.
AllianceOne asserts that because it did not file a proof of claim seeking recovery of District Court debts and because it no longer has authorization to collect District Court debts, Sanders' erred by bringing District Court related claims against it. However, this argument fails to address the alleged collection activity that occurred following the discharge in the Initial Bankruptcy Case. Neither party provided documentation of the judgments rendered in District Court, therefore I am unable to determine whether those debts were in fact excepted from discharge. Furthermore, it appears from the offers of proof submitted by Sanders that AllianceOne did engage in some collection activity by sending a collection letter post-discharge. However, even if AllianceOne did violate the discharge injunction, it is unclear what damages, if any, Sanders' would be entitled. Since I am unable to determine the dischargeability of the District Court debts, I deny AllianceOne's request, on summary judgment, to dismiss those claims.
In sum, I deny Sanders' motion for summary judgment and grant AllianceOne's motion for summary judgment in part. AllianceOne is granted summary judgment only to the extent that I have determined the following items to be nondischargeable:
There still exists an issue of material fact as to the accuracy of AllianceOne's accounting due to the discrepancies between the Sentencing Orders, the Collection Referrals, the Accounting Summaries and the Proofs of Claim. Notwithstanding that AllianceOne has shown that much of the debt imposed by the Sentencing Orders is nondischargeable, it still bears the ultimate burden of persuasion in proving the accuracy of the amounts claimed. See Lundell v. Anchor Constr. Specialists, Inc. (In re Lundell), 223 F.3d 1035, 1039 (9th Cir. 2000). Similarly, for the few remaining items in which I could not determine dischargeability — including both the Municipal Court collection costs and the District Court debts-there remains the possibility that AllianceOne violated the discharge injunction following the Initial Bankruptcy Case. Therefore, I am unable to dismiss, on summary judgment, Sanders' claim under the Washington Consumer Protection Act under RCW § 19.86 and the Washington Collection Agency Act under RCW § 19.16.
Counsel for AllianceOne should submit appropriate forms of order (a) granting its summary judgment in part, and (b) denying the Sanders' motion for summary judgment.
