Susan V. Kelley, Chief U.S. Bankruptcy Judge.
After her Chapter 7 bankruptcy case concluded, Teresa Bushberger (the "Debtor") filed an action against Midland Credit Management, Inc. ("Midland") in the United States District Court for the Eastern
The Debtor filed this bankruptcy case on February 27, 2017. She did not list any potential FDCPA claims against Midland on Schedule A/B of her bankruptcy schedules, although she did list FDCPA claims against other creditors. The Chapter 7 Trustee reported that there was no property available for distribution from the estate beyond what the Debtor had exempted, and the Court issued a Chapter 7 discharge to the Debtor on June 6, 2017. The case was closed the same day.
On October 26, 2017, the Debtor filed the FDCPA action. The action related to a letter that was mailed to the Debtor in October 2016, before she filed the bankruptcy case. (Docket No. 12-1 at 10.) On February 14, 2018, Midland filed a motion to dismiss the FDCPA action, arguing in part that the Debtor did not have standing to bring the action because it was property of the bankruptcy estate and only the bankruptcy trustee could prosecute the claim. Midland also argued that the Debtor was judicially estopped from prosecuting the claim because she did not disclose it in her bankruptcy schedules. The day after Midland filed its motion to dismiss the FDCPA action, the Debtor filed a motion to reopen her bankruptcy case to amend her schedules to list the claim.
The District Court then denied Midland's motion to dismiss the FDCPA action without prejudice, noting that "[i]t appears likely that the bankruptcy court's decision, whatever it may be, will moot Midland's motion to dismiss. At a minimum the bankruptcy court's decision stands to significantly undermine the relevance of the issues and arguments the parties present in their briefs." Bushberger v. Midland Credit Mgmt., Inc., No. 17-cv-01468-WED (E.D. Wis. Mar. 26, 2018) (Docket No. 20.) The parties have briefed
Although the Debtor received the offending letter before she filed her bankruptcy petition, she now argues that the FDCPA claim did not become part of her bankruptcy estate. Her attorneys did not believe that the letter violated the FDCPA at the time she filed her bankruptcy case. That opinion changed between the date the Debtor filed the case and the date she
The Debtor contends that her FDCPA claim only "obtained value" after the Pantoja decision. She argues a potential claim that has no value until after a bankruptcy petition is filed is not property of the estate: "an `asset' with no value to the bankruptcy estate is not an asset." (Docket No. 24 at 10.) Relatedly, she argues she was not required to amend her schedules during the bankruptcy case to disclose the claim as soon as the Pantoja case was decided. Both of these assertions appear to confuse the value of the claim with the determination of whether it is property of the estate.
The test for whether a potential claim is property of the estate is separate from the question of the claim's value. Under § 541 of the Bankruptcy Code, the commencement of a bankruptcy case creates an estate comprised of "all legal or equitable interests of the debtor in property as of the commencement of the case," except as otherwise provided in the statute. The concept of property of the estate is extremely broad and includes legal claims a debtor possesses against other parties. Polis v. Getaways, Inc. (In re Polis), 217 F.3d 899, 901 (7th Cir. 2000). The intent of § 541 "is to include all property rights of the debtor, even if that interest is contingent or speculative." White v. Coyne, Schultz, Becker & Bauer, S.C. (In re Pawlak), 483 B.R. 169, 176 (Bankr. W.D. Wis. 2012). It is true that the "date of valuation of an asset for purposes of determining whether it can be exempted is the date on which the petition for bankruptcy is filed." Polis, 217 F.3d at 902. However, if a legal claim arises out of a transaction that occurred before the petition was filed, it becomes property of the bankruptcy estate. Id.
Because the Pantoja decision was issued after her bankruptcy petition date, the Debtor suggests that her FDCPA claim "had not accrued prior to the filing" of the bankruptcy case. (Docket No. 24 at 9.) However, the "`standard rule' is that a claim accrues `when the plaintiff has a complete and present cause of action.'" Gabelli v. SEC, 568 U.S. 442, 448, 133 S.Ct. 1216, 185 L.Ed.2d 297 (2013) (quoting Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007)). Applying this rule, the cause of action accrued prepetition. The Debtor acknowledges "she had received and been confused by [Midland's] letter months before filing her bankruptcy." (Docket No. 24 at 20.) Not only had the conduct necessary to complete the cause of action occurred before the Debtor filed bankruptcy, the Debtor was aware of the facts of the claim prior to the petition.
The Debtor's argument hinges on her attorneys' new legal theory: "the import of the Pantoja II decision on Plaintiff's case against [Midland] did not become apparent to Debtor or her attorneys until several months after the debts had been discharged." (Id.) She suggests that this timing renders the claim a post-petition claim that is not property of the estate.
Goldstein v. Stahl (In re Goldstein), 526 B.R. 13 (9th Cir. BAP 2015) is instructive as to the effect of subsequent judicial decisions on whether a claim is property of a bankruptcy estate. In that case, the Chapter 7 debtors argued that their causes of action against their mortgage lender arose post-petition and were not property of the bankruptcy estate. The debtors argued that the "state of the law" changed post-petition, and their right to a remedy was created by decisions issued after the petition date. The Bankruptcy Appellate Panel analyzed the decisions on which the debtors relied and determined that the courts reached their conclusions through an application of existing law. The B.A.P. concluded that the decisions "did not create new legal rights." Id. at 22. Rather, "[t]hey interpreted the respective borrowers' rights under state laws then in effect to consider the impact of HAMP [Home Affordable Modification Program] provisions and related agreements." Id. Importantly, the "plaintiffs in each case faced the same state of the law that the [debtors] complain they faced prepetition, but they persevered and eventually persuaded the reviewing courts to rule in their favor." Id. at 23. The debtors, "arguably, might have done the same." Id. The B.A.P. distinguished cases in which legislation enacted after the filing of a bankruptcy case created the rights at issue.
The Debtor's arguments fail for the very same reasons as the rejected arguments in Goldstein. Because the Debtor received the letter pre-petition, the Debtor's claim "involve[s] interpretation of the legal significance of the facts as they existed" before the petition. Id. The Pantoja decision did not create a new right that did not already exist when the Debtor filed bankruptcy. The unscheduled claim asserted in the FDCPA action was property of the Debtor's bankruptcy estate when she filed the case and still is. See 11 U.S.C. § 554(c), (d). If the asset had been scheduled and abandoned, the claim would have reverted to the Debtor with retroactive effect. See Morlan v. Universal Guar. Life Ins. Co., 298 F.3d 609, 617 (7th Cir. 2002) ("[W]hen property of the bankrupt is abandoned, the title `reverts to the bankrupt, nunc pro tunc, so that he is treated as having owned it continuously.'") (quoting Wallace v. Lawrence Warehouse Co., 338 F.2d 392, 394 n.1 (9th Cir. 1964)).
Exempting the asset likely would not have a similar retroactive effect. See Ball v. Nationscredit Fin. Servs. Corp., 207 B.R. 869, 872-73 (N.D. Ill. 1997). In Ball, the debtor's claimed exemption did not take effect until the 30-day objection period for the exemption passed and all objections were resolved. By that date, a Truth in Lending Act ("TILA") lawsuit had already been filed, but since the debtor's exemptions were not finalized, the court found she did not have standing to bring the suit. The court dismissed the TILA case for lack of standing, but indicated that the statute of limitations may have been tolled for various reasons, and stated that the dismissal was without prejudice.
In this case, anticipating the determination that the FDCPA action is property of the estate, the Debtor addresses the
Finally, in an earlier case, Cannon-Stokes v. Potter, 453 F.3d 446 (7th Cir. 2006), the court made a similar observation. A debtor failed to schedule an administrative claim against the Postal Service and filed suit after the bankruptcy case was over. In holding that judicial estoppel barred the debtor's suit, the court suggested that if the debtor "were really making an honest attempt to pay her debts, then as soon as she realized that it had been omitted, she would have filed amended schedules and moved to reopen the bankruptcy, so that the creditors could benefit from any recovery." Id. at 448. Admittedly, the instant case differs from these cases in that the Debtor would be able to exempt the entire value of the asset, assuming the value is what she claims. However, this may ultimately be a distinction without a difference, as any value beyond what the Debtor can exempt would be available to creditors.
The Debtor argues extensively that judicial estoppel should not apply to bar the FDCPA action. This argument should be addressed to the District Court. As Biesek, Cannon-Stokes, and Metrou suggest, it is for the court presiding over a subsequent legal proceeding to consider whether a plaintiff is able to prosecute an unscheduled lawsuit from an earlier bankruptcy case. Although the reopened bankruptcy case is pending in this Court, the question of the Debtor's standing and application of the equitable principles of judicial estoppel are not. Rather, the only questions for this Court are whether the claim is property of the bankruptcy estate, and if so, whether the Debtor may amend her schedules to list it and claim it exempt.
IT IS THEREFORE ORDERED: the Court determines that the FDCPA action is property of the bankruptcy estate that the Debtor may schedule and claim exempt, subject to the rights of the creditors and trustee to object to the exemption.