Court of Appeal (Ind.) Interprets 9th Circuit Precedent as Holding that Bankruptcy Discharge Does Not Preclude Enforceability of Arb. Clause on FCRA Claim

In Green Tree Servicing, LLC v. Brough, — N.E.2d —-, 2010 WL 2894888 (Ind.App. 2010), the Indiana Court of Appeal required arbitration of a FCRA claim because of the arbitration clause in the consumer contract and notwithstanding the consumer’s discharge of the debt in bankruptcy.  The Court of Appeal held:

We begin by determining whether the parties agreed in the Contract to arbitrate Brough’s FCRA claim. Several other jurisdictions faced with this question have held that FCRA claims can be subject to arbitration clauses. See DeGraziano v. Verizon Communications, Inc., 325 F.Supp.2d 238, 245 (E.D.N.Y.2004) (determining that a plaintiff’s FCRA claim was subject to an arbitration clause in a cellular telephone service agreement); Sarver v. TransUnion, LLC, 264 F.Supp.2d 691, 693 (N.D.Ill.2003) (determining that a plaintiff’s FCRA claim was subject to an arbitration clause in a credit card agreement). We find these cases persuasive, but the crucial point in this case is that Brough has admitted that his FCRA claim is subject to the arbitration clause. During the trial court’s hearing on Brough’s request to vacate the arbitration order, Brough stated, “[i]f the bankruptcy did not happen, we agree that arbitration would be required.” Tr. p. 6. Thus, subject to Brough’s challenge to the validity of the entire contract, which we discuss below, we conclude that the parties agreed in the Contract to arbitrate Brough’s FCRA claim. See Mid-States Aircraft Engines, Inc. v. Mize Co., Inc., 467 N.E.2d 1242, 1248 (Ind.Ct.App.1984) (determining that a concession on a question of fact was a binding admission).  ¶  Brough contends that the Contract as a whole is no longer valid because it was terminated by his bankruptcy discharge. We disagree. The parties have not directed us to any Indiana authorities on this issue, but we find In re Wells Fargo Bank, N.A., 300 S.W.3d 818 (Tex.Ct.App.2009) persuasive. In that case, homeowners defaulted on a home equity loan and filed for bankruptcy.   Id. at 822. The homeowners were later discharged from bankruptcy. Id. Subsequently, the lender foreclosed upon the loan and took possession of the real property that the homeowners had used to secure the loan. Id. The homeowners filed suit against the lender and other parties. The lender filed a motion to compel arbitration, which the trial court denied, and the lender filed a petition for writ of mandamus with the Texas Court of Appeals. Id . at 823. On appeal, the homeowners contended that the trial court’s judgment was correct because the bankruptcy proceeding absolved them from any further obligations under their agreements with the lender, including their agreement to arbitrate. Id. at 825. The Texas Court of Appeals disagreed, concluding that the arbitration agreement survived the bankruptcy. Id. at 826. The court cited another case that reached the same conclusion, noting that the bankruptcy proceeding had ended, so arbitration of the dispute would not jeopardize the bankruptcy proceeding. Id. (citing MBNA Am. Bank, N.A. v. Hill, 436 F.3d 104, 108-109 (2nd Cir.2006)).  ¶   Similarly, in Siegel v. Federal Home Loan Mortgage Corp., 143 F.3d 525, 527-528 (9th Cir.1998), a borrower, Siegel, executed two notes, each secured by mortgages on different parcels of real property, but defaulted on the notes and filed for bankruptcy. During bankruptcy proceedings, the lender foreclosed on one of the properties with the bankruptcy court’s permission. Id. at 528. After Siegel obtained a bankruptcy discharge, the lender foreclosed on the other property. Id. Subsequently, Siegel sued the lender, raising tort and breach of contract claims. Id. at 527. The lender prevailed in the district court and moved to recover attorney’s fees pursuant to the parties’ mortgage agreements. Id. at 528. The district court granted the lender’s request and awarded the lender attorney’s fees. Id. On appeal, Siegel contended that the attorney’s fees provisions in the parties’ agreements were invalidated by the bankruptcy proceedings. Id. at 531. The Ninth Circuit disagreed, stating that Siegel’s “bankruptcy discharge did not eliminate the provision. That is, it cannot be said that the whole contract merged into that judgment.” Id. The attorney’s fees provision “may have fallen dormant, but it was reviviscible.” Id.  In this case, as in In re Wells and Siegel, Brough’s bankruptcy proceeding has ended, so arbitration of his FCRA claim will not jeopardize the bankruptcy case or affect Brough’s bankruptcy discharge. The Contract’s arbitration clause, like the attorney’s fees provision in Siegel, was not terminated by Brough’s bankruptcy discharge. For these reasons, we conclude that Brough’s contractual obligation to arbitrate his FCRA claim against Green Tree was not invalidated by his bankruptcy discharge.  Brough cites Circuit City Stores, Inc. v. Adams, 279 F.3d 889 (9th Cir.2002), cert. denied, 535 U.S. 1112, 122 S.Ct. 2329, 153 L.Ed.2d 160 (2002), but that case is distinguishable. In that case, the Ninth Circuit was asked to determine whether an arbitration clause in an employment contract was unconscionable under California law. Id. at 892. By contrast, in this case Brough has not raised a claim of unconscionability.