2d Cir. Distinguishes 9th Circuit’s Walls Decision; Says FDCPA Claims Arising from Post-Discharge Conduct Can Be Brought Outside the Bankruptcy Court

In Garfield v. Ocwen Loan Servicing, LLC, 2016 WL 26631, at *2-3 (C.A.2 (N.Y.),2016), the Court of Appeals for the Second Circuit said that FDCPA claims grounded in post-discharge misconduct are independent of the bankruptcy code.

Where, as in this case, the later statute is the Bankruptcy Code, a distinction must be made between claims brought under the earlier statute during the pendency of a bankruptcy proceeding and those brought after a discharge. Four circuits have considered FDCPA claims brought during the pendency of a bankruptcy proceeding. Our Court has ruled that the FDCPA does not authorize suit during the pendency of bankruptcy proceedings. See Simmons v. Roundup Funding, LLC, 622 F.3d 93, 96 (2d Cir.2010). This ruling appears to construe FDCPA provisions to be inapplicable when invoked for claims made during bankruptcy, rather than determine that such provisions have been impliedly repealed by the provision of the Bankruptcy Code authorizing a discharge injunction. See id. at 94. . . .The Ninth Circuit has ruled that the Bankruptcy Code precludes FDCPA claims brought during the pendency of bankruptcy proceedings. See Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 511 (9th Cir.2002). This Court, like the District Court in the pending appeal, appears to have said “precludes” FDCPA claims to reflect that the FDCPA provisions invoked for such claims have been repealed by implication with respect to conduct that violates the discharge injunction.  Two circuits have ruled to the contrary. In Randolph v. IMBS, Inc., 368 F.3d 726, 728 (7th Cir.2004), the debtors brought FDCPA claims against creditors for seeking to collect debts in violation of the automatic stay. The creditors asserted that the Bankruptcy Code’s remedies for violations of the automatic stay, see 11 U.S .C. § 362(h) (now § 362(k)), precluded relief under the FDCPA. . . .The Seventh Circuit concluded, “It is easy to enforce both statutes, and any debt collector can comply with both simultaneously .” Id. The Third Circuit has also ruled against implied repeal of FDCPA provisions invoked for claims brought during the pendency of bankruptcy proceedings, see Simon v. FIA Card Services, N.A., 732 F.3d 259, 274 (3d Cir.2013), concluding that the Bankruptcy Code effected “no broad preclusion” of FDCPA claims, id. at 278.  The pending appeal concerns FDCPA claims brought after discharge, the context we explicitly distinguished in Simmons. Now facing the issue of implied repeal of FDCPA provisions invoked for claims in the post-discharge context, we conclude that the Bankruptcy Code does not broadly repeal the FDCPA for purposes of FDCPA claims based on conduct that would constitute alleged violations of the discharge injunction. No irreconcilable conflict exists between the post-discharge remedies of the Bankruptcy Code and the FDCPA. There is no reason to assume that Congress did not expect these two statutory schemes to coexist in the post-discharge context. The Seventh Circuit’s analysis of FDCPA and Bankruptcy Code provisions, although leading that Court to a result that differs from our Simmons decision in the pre-discharge context, argues against preclusion of FDCPA claims after discharge. At that point the former debtor no longer has the “protection of the bankruptcy court,” Simmons, 622 F.3d at 96, which we deemed decisive on the preclusion issue prior to discharge. Indeed, the Bankruptcy Code provision concerning the discharge injunction, see 11 U.S.C. § 524(a)(2), does not explicitly create a cause of action for its violation, whereas the automatic stay provision provides such a remedy, see id. § 362(k)