Some time ago I wrote in great detail about a split among the circuits over whether the Bankruptcy Code preempts the Fair Debt Collection Practices Act (“FDCPA”).
The gist of the split is over whether a debtor can simultaneously sue a creditor under both the Bankruptcy Code and the FDCPA for violating either the
A very recent Eleventh Circuit decision, Crawford v. LVNV Funding, LLC, No. 13-12389 (11th Cir., July 10, 2014), highlights an interesting split among the circuits, which makes things ripe for an appeal to the Supremes.
First let’s get a little background.
BACKGROUND
I. The Automatic Stay And The Discharge Injunction
When a person files for bankruptcy protection, the automatic stay is triggered. The stay prevents creditors from taking action against the debtor, the debtor’s possessions, and the bankruptcy estate that is created upon filing. I have written about the automatic stay in many previous posts, so I won’t spend a lot of time exploring it here.
[T]he stay . . . continues until the earliest of —
(A) the time the case is closed;
(B) the time the case is dismissed; or
(C) if the case is a case under chapter 7 of this title concerning an individual or a case under chapter 9, 11, 12, or 13 of this title, the time a discharge is granted or denied.
If the debtor receives a discharge, then once the stay terminates it is replaced by the permanent discharge injunction of 11 U.S.C. § 524(a), that forever prohibits creditors from attempting to collect discharged debts.
II. The Fair Debt Collection Practices Act
The Bankruptcy Code is federal law, made pursuant to Congress’s enumerated power “to establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Const. art. I, § 8, cl. 4. It affords debtors marvelous protections — including the automatic stay and the discharge injunction — against the depredations of their creditors.
Another federal law that protects debtors, in this case from debt collectors, is the Fair Debt Collection Practices Act (“FDCPA”) found in 15 U.S. Code § 1692, et seq. The FDCPA contains significant limitations on what a debt collector can do. By the way, the limitations here are not on the creditor, just on the collector.
III. The Doctrine Of Federal Preemption
The U.S. Constitution contains the following provision:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const., art. VI, para. 2.
This means that federal laws are binding on everyone. Thus, if there is a conflict between a federal statute and a state statute, the federal statute always wins. This is sometimes referred to as the doctrine of federal preemption.
But notice what the Constitution does not say. It does not say anything about the relationship between two federal statutes. Therefore, if there were an inconsistency between two federal statutes, there is no formula for determining which statute controls. And if there were no conflict between two federal statutes, there is no indication that one should be preferred above the other.
IV. The Ninth Circuit’s Walls Decision
In 2002 the U.S. Court of Appeals for the Ninth Circuit issued a decision in Walls v. Wells Fargo Bank, N.A., 276 F. 3d 502 (9th Cir. 2002), that has created a problem for Ninth Circuit practitioners.
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