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«[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 15-11240 D.C. Docket No. 1:14-cv-00322-WS-C ALEIDA JOHNSON, f.k.a. ...»

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Of course, the FDCPA does not reach all creditors. The statute applies only to “debt collectors,” who are defined as “any person who... regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). And “debt collectors” are a narrow subset of the universe of creditors who might file proofs of claim in a Chapter 13 bankruptcy. Under the Code, any “creditor” (defined as any “entity that has a claim against the debtor that arose at the time of or before the [bankruptcy] order”) may file a proof of claim. 11 U.S.C. § 101(10)(A). So not all “creditors” who file a proof of claim in a Chapter 13 bankruptcy case can face potential FDCPA liability as “debt collectors.” Also, the FDCPA provides a safe harbor for debt collectors who might unintentionally or in good faith file such a claim. See 15 U.S.C. § 1692k(c). A debt collector who appears to have violated the FDCPA can avoid liability by showing (by a preponderance of evidence) that their violation “was not intentional and resulted from a bona fide error.” Id. These two requirements—that the claim be filed by a “debt collector” and that the claim be “knowingly” time-barred—limit application of the FDCPA to a narrow range of actors and claims.

3.

The District Court found an “obvious tension” between the Bankruptcy Code and the FDCPA because “the Code permits creditors to file proofs of claim

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in Chapter 13 proceedings on debts known to be time-barred, while the Act prohibits debt collectors from engaging in such conduct.” Based on its perception that this is an “irreconcilable conflict,” the District Court found that the laterenacted Code impliedly repealed the earlier-enacted FDCPA. In that court’s view, this prohibited the Debtors from seeking FDCPA remedies against the Claimants who had filed proofs of claim in their Chapter 13 bankruptcy cases.

Where two federal statutes conflict, a cause of action provided by one statute may be precluded by the provisions of the other. See POM Wonderful LLC v.

Coca-Cola Co., ___ U.S. ___, ___, 134 S. Ct. 2228, 2236 (2014). Where there is such an “irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one.” Posadas v. Nat’l City Bank of N.Y., 296 U.S.

497, 503, 56 S. Ct. 349, 352 (1936) (quotation omitted). However, “repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal is clear and manifest.” Nat’l Ass’n of Home Builders v.

Defenders of Wildlife, 551 U.S. 644, 662, 127 S. Ct. 2518, 2532 (2007) (quotations omitted) (alteration adopted).

This is to say that courts must be modest in construing a repeal by implication. “[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S.

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124, 143–44, 122 S. Ct. 593, 605 (2001) (quotation omitted). For irreconcilable conflict to exist there must usually be some sort of “positive repugnancy” between the statutes at issue, because two statutes can typically coexist if they simply contain “different requirements and protections.” Id. We will not infer a statutory repeal unless either the later statute expressly contradicts the earlier statute or this construction “is absolutely necessary” in order for the later statute to “have any meaning at all.” Nat’l Ass’n of Home Builders, 551 U.S. at 662, 127 S. Ct. at 2532 (quotations omitted).

The FDCPA and the Code are not in irreconcilable conflict. The FDCPA and the Code differ in their scopes, goals, and coverage, and can be construed together in a way that allows them to coexist. See POM Wonderful LLC, 134 S.

Ct. at 2238 (finding two federal statutes complementary to each other when they touched on the same general subject matter but each “ha[d] its own scope and purpose” and “impose[d] different requirements and protections” (quotation omitted)). There is no “positive repugnancy” between the statutes, because reading the two statutes as we described does not create such an express contradiction that implied repeal of the FDCPA “is absolutely necessary” in order for § 501(a) of the Bankruptcy Code (which creates the right to file a claim) to “have any meaning at all.” Nat’l Ass’n of Home Builders, 551 U.S. at 662, 127 S. Ct. at 2532 (quotations omitted).

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The Bankrupty Code and the FDCPA can be reconciled because they provide different protections and reach different actors. See J.E.M. Ag Supply, Inc., 534 U.S. at 142, 122 S. Ct. at 604 (finding no irreconcilable conflict where two regimes regulate at different levels of stringency and provide varying amounts of protection). The Code allows all “creditors” to file proofs of claim, see 11 U.S.C. § 101(10)(A), while the FDCPA dictates the behavior of only “debt collectors” both within and outside of bankruptcy, see 15 U.S.C. § 1692a(6). The Code establishes the ability to file a proof of claim, see 11 U.S.C. § 105(a), while the FDCPA addresses the later ramifications of filing a claim, see Crawford, 758 F.3d at 1257.





We read these regimes together as providing different tiers of sanctions for creditor misbehavior in bankruptcy. Cf. POM Wonderful LLC, 134 S. Ct. at 2238 (“When two statutes complement each other, it would show disregard for the congressional design to hold that Congress nonetheless intended one federal statute to preclude the operation of the other.”). In a Chapter 13 bankruptcy proceeding, the first potential line of protection against a creditor who files a time-barred proof of claim is for the bankruptcy trustee to object to the claim during the course of the bankruptcy proceedings. See 11 U.S.C. §§ 704(a)(5), 1302(b)(1). If the bankruptcy court finds the objection to be proper, it can deny payment of the claim. See id. § 502(b)(1). Where a creditor’s misbehavior is more severe, the

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Code provides a more powerful remedy. Bankruptcy courts have the power to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Code],” such as issuing sanctions against a party for misbehavior. Id. § 105(a).

The FDCPA easily lies over the top of the Code’s regime, so as to provide an additional layer of protection against a particular kind of creditor. It kicks in only when the creditor is a debt collector that “regularly collects” or is in “any business the principal purpose of which is the collection” of debts. 15 U.S.C.

§ 1692a(6). And even then, the requirement for finding a violation is quite stringent—the creditor’s behavior must reach the point of “unconsionab[ility]” or “decepti[on].” Id. §§ 1692e, 1692f. It is only under these circumstances that the FDCPA offers the severe remedy of civil liability for damages to the debtor. See id. § 1692k(a).

We thus conclude that the FDCPA and the Code can coexist. Our holding does not infringe any creditor’s ability to file a claim in a debtor’s bankruptcy proceeding. However, when a debt collector, as specifically defined by the FDCPA, files a proof of claim for a debt that the debt collector knows to be timebarred, that creditor must still face the consequences imposed by the FDCPA for a “misleading” or “unfair” claim. The Bankruptcy Code’s rules about who can file

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claims do not shield debt collectors from the obligations that Congress imposed on them.

We reject the Claimants’ assertion that potential consequences under the FDCPA for filing a time-barred proof of claim effectively forces a debt collector to “surrender[] its right to file a proof of claim.” This argument misunderstands the relationship between the two statutes. There is no blanket prohibition on filing a time-barred claim in bankruptcy, and we say nothing to the contrary here. 1 In the same way, the Bankruptcy Code does not require any creditor to file a proof of claim in a bankruptcy proceeding—it only allows it. See 11 U.S.C. § 501(a). If a debt collector chooses to file a time-barred claim, he is simply opening himself up to a potential lawsuit for an FDCPA violation. This result is comparable to a party choosing to file a frivolous lawsuit. There is nothing to stop the filing, but afterwards the filer may face sanctions. See Fed. R. Civ. P. 11(b)–(c).

In closing, we observe that our conclusion that there is no “positive repugnancy” between the FDCPA and the Bankruptcy Code is bolstered by two additional facts. First, no provision in either the FDCPA or the Code “purports to govern the relevant interaction between the [two statutes].” POM Wonderful LLC, 134 S. Ct. at 2237. Second, Congress never expresed a “clear and manifest intent”

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to repeal the protections of the FDCPA when it enacted the Bankruptcy Code only one year later. See Nat’l Ass’n of Home Builders, 551 U.S. at 662, 127 S. Ct. at

2532. Because the FDCPA and the Bankruptcy Code may be read to coexist, the Code does not preclude an FDCPA claim in the bankruptcy context.

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This dispute reveals no irreconcilable conflict between the Bankruptcy Code and the FDCPA. A creditor may file a proof of claim in a Chapter 13 bankruptcy proceeding under the Code. However, when that creditor is also a “debt collector” as defined by the FDCPA, the creditor may be liable under the FDCPA for “misleading” or “unfair” practices when it files a proof of claim on a debt that it knows to be time-barred, and in doing so “creates the misleading impression to the debtor that the debt collector can legally enforce the debt.” Crawford, 758 F.3d at

1261. Because the Debtors’ FDCPA claims are not precluded by the Bankruptcy Code, we reverse and remand to the District Court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

17

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