Mark Ellis successfully defended Credit Bureau Associates in an adversary proceeding brought on behalf of Hye Rhee Kong in the U.S. Bankruptcy Court for the Northern District of California. Kong alleged that CBA was wrongfully attempting to collect against Kong on a debt previously discharged by bankruptcy and that it was wrongfully reporting the discharged debt as delinquent to credit agencies.
The complaint sought a temporary restraining order as well as actual damages, punitive damages, court costs and attorney’s fees. The adversary complaint alleged violations of the California Consumer Credit Reporting Act (CCCRA), the Fair Credit Report Act (FCRA), and the Fair Debt Collection Practices Act (FDCPA).
In dismissing the action, the court rejected the plaintiff’s adversary complaint on the ground that it circumvented the Bankruptcy Code in order to create a private right of action that would improperly permit punitive damages and other remedies proscribed by the FDCPA, FCRA and CCCRA.
For the same reasons, Kong was also denied injunctive relief on grounds the original bankruptcy discharge injunction under 11 U.S.C. § 524(a)(2), was a still operative injunction, and because the proper remedy available to the plaintiff if any was a motion for contempt. The court agreed with the defense that the Bankruptcy Court possessed no subject matter jurisdiction to rule on the FDCPA, FCRA and CCCRA claims.
The order of dismissal is dated November 15, 2013. Kong v. Kelkris Associates, Inc., dba Credit Bureau Associates (N.D. Cal Bkrptcy 2013) 2013 WL 6923063.
—End of Press Release—
Articles on areas of law that were involved in this case include:
TALES FROM THE FRONTLINE: FINDING THE SILVER LINING IN JERMAN
By Mark E. Ellis
Jerman v. Carlisle is only the second case decided by the United States Supreme Court to analyze the text and legislative history of the FDCPA.
THE CURRENT STATUS OF FURNISHER OBLIGATIONS AND LIABILITY UNDER THE FCRA (AND CCRAA)
By Mark E. Ellis
Three 2009 decisions have changed, clarified, or muddied (depending on your point of view) the legal landscape in California as to the legal obligations of those who furnish credit-related information on consumers to credit reporting agencies.
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