There is no violation of the FDCPA which can be based solely upon alleged efforts to collect a debt previously discharged in bankruptcy, according to a recent decision from the District of New Jersey litigated by attorneys of Maurice & Needleman on behalf of AFNI, Inc.
While a case of first impression within the District of New Jersey, the decision, Perkins v. AT&T Mobility, drew from a well-established body of case law within the Third Circuit holding that no private right of action exists for violation of a bankruptcy discharge injunction. Instead, any claim arising from a discharge injunction must be maintained as a contempt proceeding in the bankruptcy court where the discharge was first granted.
In its briefing, AFNI argued:
To the extent that the Plaintiff bases his entire FDCPA claim solely on the act of attempting to collect a debt allegedly “discharged in bankruptcy” it imbricates the scope of the 11 U.S.C. 524(a)(2) discharge injunction, amounts to a “back door” attempt to assert a private right of action under § 524 and is precluded. . .
Judge Joseph Irenas, in dismissing the putative class action complaint, agreed and wrote:
While discharge in bankruptcy does serve as an injunction against a creditor’s attempts to collect debts as obligations of the debtor, there is no private right of action for violation of that discharge. * * * The FDCPA does not serve as a “back door” which would allow such a private right of action. (citations omitted).
A copy of the decision is available at this link: order and decision dismissing claims with prejudice
