Bank Violated the Automatic Stay by Sending Statements to Debtors to Persuade them to Make Payments on Scheduled Debts

Bank Violated the Automatic Stay by Sending Statements to Debtors to Persuade them to Make Payments on Scheduled Debts

On April 15, 2011, Debtors filed a voluntary petition under Chapter 13 and listed Bank on Schedule F and the mailing matrix. The Court mailed copies of the notice of the meeting of creditors and order confirming plan to the bank.

After the Court confirmed the plan, Bank sent Debtors several mortgage statements.  During this time, Debtors made phone calls to Bank asking a representative of the bank to stop mailing the account statements because they were under the protection of the bankruptcy proceedings. A Bank representative  informed one of the Debtors that he was aware of the bankruptcy proceeding and that he would verify the cause of remittance in order to rectify the situation.

Debtors argue that Bank violated the automatic stay when it mailed several account statements corresponding to the Debtors’ revolving credit loan. Bank answered that “there is no evidence of bad faith or malice” in sending out the account statements. Bank presented a statement under penalty of perjury by one of its employees that indicated that the account statements sent to Debtors were part of a technical problem that Bank had due to codification of its accounts as a result of the merger of Oriental and Banco Bilbao Vizcaya Argentaria.

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The automatic stay prohibits communication by a creditor to a debtor to collect on a pre-petition claim. Not all communications by creditor to a debtor are barred by the automatic stay. In re Claudio, 2012 Bankr. Lexis 5041 (Bankr. D.P.R. 2012). Communicating the existence of a debt is an “act to collect” if it overtly demands payment, coerces its recipient to provide payment, or lacks valid informational purpose.

 A willful violation of the automatic stay does not require a specific intent to violate the automatic stay. Fleet Mortgage Group v. Kaneb, 196 F.3d 265, 269 (1st Cir. 1999). A willful violation of the stay is met when a creditor’s conduct in the collection of pre-petition debt was intentional, and committed with knowledge of the pendency of the bankruptcy case.Laboy v. Doral Mortgage Corp., 647 F.3d 367, 374 (1st Cir. 2011). In Kaneb, the Court of Appeals for the First Circuit decided that:

In cases where the creditor received actual notice of the automatic stay, courts must presume that the violation was deliberate. The debtor has the burden of providing the creditor with actual notice. Once the creditor receives actual notice, the burden shifts to the creditor to prevent violations of the automatic stay.

When a creditor communicates with the debtor there must be a valid purpose in communicating the information and if the communication itself is informational only, it cannot demand payment nor have the effect of coercing payment. Thomas, 554 B.R. at 520. A bankruptcy court recently ruled that monthly account statements sent to a debtor do not violate the stay if the letter includes a bankruptcy disclaimer because it becomes informative. In re Navarro, 2017 Bankr. Lexis 52 (Bankr. D.P.R. 2017). Other courts have suggested that disclaimer language in an account statement must be unambiguous and sufficient to alert a debtor that if he is protected by the automatic stay, then the statement is for compliance and/or informational purposes only.

A detailed observation of the account statements that were submitted as part of the summary judgment evidence reveals that some of the account statements were not informative but instead constitute a violation of the stay. The account statements corresponding to January 31, 2014, March 31, 2014, August 31, 2014, November 30, 2014, January 31, 2015, February 28, 2015, and March 31, 2015 are of coercive nature. These account statements summarize information of two bank accounts: Progresa (Account No. 1614004410) and Revolving Credit Loan (Account No. 1614004410-00001). The Progresa account’s summary does not demand payment, but the Revolving Credit Loan account summary indicates that payment should be made at a specified date. The summary of the Revolving Credit Loan contains the following information: (1) the account balance, (2) amount due (3) a due date and (4) interest payable. The amount due for these accounts statements increases each month and indicates that the debt is due on the following month. As such, the demand for payment on the account statements for the revolving credit loan pertaining to the months of January 31, 2014, March 31, 2014, August 31, 2014, November 30, 2014, January 31, 2015, February 28, 2015, and March 31, 2015 constitutes a violation of the automatic stay.

The Court  granted the Debtors’ partial motion for summary judgment with respect to the violation of the automatic stay. The Court will hold an evidentiary hearing to address Debtors’ claims regarding damages and attorney’s fees.

VAZQUEZ v ORIENTAL BANK (Bankr D PR)

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