Despite Disclaimer In Notices That If Debtor Was Discharged In Bankruptcy The Notices Are Not Attempts To Collect A Debt Court Found Notices Violated Discharge Injunction Because The Demand For Payment Effectively Overshadowed The Disclaimer

The debtor in In re Hernandez, No. 12-37496 (Bankr. S.D. Tex. Nov. 6, 2014) received a discharge in a chapter 7 bankruptcy but his servicer continued to send him monthly statements asking for payment on the loan. After debtor’s counsel sent several cease and desist letters, the servicer wrote that it was not aware that the loan had been discharged and that it would not send any more monthly statements. However, the servicer sent another monthly statement to the debtor prompting the debtor to file a complaint alleging a violation of the post-discharge injunction. The servicer moved to dismiss arguing that the monthly statements were not an attempt to collect a debt and therefore it had not violated the post-discharge injunction. Instead, the monthly statements merely informed the debtor that if he does not cure the default, the servicer would be entitled to pursue all available remedies, including foreclosure. The court disagreed and found the actual text of the monthly statements speaks otherwise. Under a heading entitled Important Messages, the statements note that [t]his is an attempt by a debt collector to collect a consumer debt and any information obtained will be used for that purpose. The statements say that a payment was due and it further directs the debtor to please write your account number on your check and return the bottom portion. The court expressly rejected the servicer’s alternative argument that even if the monthly statements could be interpreted as an attempt to enforce a personal liability, they are protected by a disclaimer printed on the second page stating that _[p]lease notice that notwithstanding anything herein to the contrary, in the event you are subject to an ‘Automatic Stay’ issued by a United States Bankruptcy court, this communication is not intended to collect, assess, or recover a debt. In the event the referenced debt has been discharged in bankruptcy, this communication is not intended to collect, recover, or offset any such debt as a personal liability to you. Please be advised that this communication constitutes neither a demand for payment nor a notice of personal liability. However, unless the bankruptcy court has ordered otherwise, please also note that despite any such bankruptcy filing, whatever rights we hold in the property that secures the obligation remain unimpaired…_. The court held that such a disclaimer cannot change the true nature of the communication. The letters effectively asked the debtor multiple times for payment on the first page of the statement, but then relied on two inconspicuous sentences in fine print hidden within paragraphs of text to claim that they were doing no such thing. A boilerplate disclaimer which is difficult to read, or even find, cannot negate an attempt to enforce a personal liability post-discharge. The servicer therefore violated the discharge injunction.

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