Md. App. Ct. Rejects Per Se Rule Establishing Debtor's Ownership of Joint Bank Account in Garnishment Proceeding; Non-Debtor Can Rebut Presumption of Ownership

In Morgan Stanley & Co., Inc. v. Andrews, the Court of Special Appeals of Maryland addressed a non-debtor’s defense to a garnishment proceeding against funds in a bank account jointly owned with the judgment debtor, who was not his spouse.   The Court determined that while there is a prima facie presumption of ownership by each named account owner, that presumption can be rebutted by clear and convincing evidence as to which portion of the account funds belong to which owner.  Thus, in this case, the Court agreed that the trial court correctly determined that the funds in an account jointly held by a father and son were not subject to garnishment, where the father successfully proved that he was the sole contributor and owner of all of the funds.

A copy of the opinion is available here.

 Background

In this case, after obtaining a judgment against the judgment debtor (“Son”), Creditor sought to garnish funds held in an account jointly titled in both Son’s name and Father’s name.  Father asserted his claim to the garnished funds under Maryland Rules 2-645(i) and 2-643(e), and after his claim was initially denied on the papers, following an appeal, the case was remanded to the trial court for an evidentiary hearing.  

Thereafter, on remand, the trial court held an evidentiary hearing to determine Father’s claim to the funds in the joint bank account, and determined that Father had established that all of the funds in the joint account belonged solely to him, and that Son had not deposited any of his own funds into the account.  Creditor then filed the present appeal.

Discussion

On appeal, Creditor argued that funds in the joint account were per se subject to garnishment because the judgment debtor was a named owner, regardless of whether co-owners of the account were also judgment debtors.  The appellate court disagreed, determining instead that, while there is a presumption that a bank deposit belongs to a named owner of the account, “a co-owner of a joint account can rebut the presumption of ownership by proving, by clear and convincing evidence, which portion of the account belongs to each co-owner.”  Op. at 14.

Notably, the Court differentiated between legal title to a joint account and equitable title to the funds within the account.  Op. at 11.  The Court adopted the majority rule followed by at least 23 other states, which provides that a judgment creditor of one joint account holder may execute against the joint account only to the extent of the debtor’s equitable interest in the account.  Op. at 11. 

In determining the debtor’s equitable interest, the Court identified two primary factors: (1) control over the funds; and (2) original contribution of the funds.  Op. at 13.  Other relevant factors include whether a party’s social security number appears on the account, which party’s name appears on checks, which party signs checks, which party pays taxes on interest from the account, and which party possesses the passbook and other related documents.  Op. at 13.  The Court cautioned that the titling of the account, and the right to withdraw from the account, do not necessarily indicate equitable ownership.  Op. at 18.

Consequently, the Court agreed with the trial court’s determination that Father was the sole owner of all funds in the account, observing that the most important factor was that it was undisputed that Father was the original contributing source of all the funds.  Op. at 20-21. 

Although the Court described how the prima facie presumption of ownership can be rebutted, it left unanswered what type of prima facie presumption applied.  The Court observed that some jurisdictions use an “equal share” approach, imposing a rebuttable presumption that account holders own equal shares, while others use a “full share” approach, presuming that each co-owner beneficially owns the entire account.  Op. at 13. 

In addition, the Court noted that its opinion did not affect the existing restriction upon garnishment of property owned jointly by spouses.  See Maryland Code, Courts and Judicial Proceedings § 11- 603(a) (“[A] garnishment against property held jointly by [spouses], in a bank, trust company, credit union, savings bank, or savings and loan association or any of their affiliates or subsidiaries is not valid unless both owners of the property are judgment debtors.”).

Md. App. Ct. Holds Debtor Cannot Attack Prior Collection Judgment as Void, Where Defense Previously Rejected; Rejects “Meaningful Review” Allegations Under FDCPA

In Mostofi v. Midland Funding, LLC, et al., the Maryland Court of Special Appeals held that a debtor could not collaterally attack a credit card judgment on jurisdictional grounds, where he raised and lost on the same issues in the prior collection case.  The Court distinguished a prior decision – which held that judgments in favor of an unlicensed debt collector are void – because, unlike the present case, the judgments at issue in the prior decision were uncontested. 

The Court further rejected the Debtor’s claims under the Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq. (FDCPA), including claims that the Creditor’s attorney failed to engage in meaningful review prior to filing suit, and expressly rejected the rationale of Bock v. Pressler & Pressler, 30 F.Supp.3d 283 (D.N.J. 2014).

A copy of the opinion is available here.

In Mostofi, Debtor had incurred credit card debt that had ultimately been assigned to Creditor.  In a prior collection case, Debtor claimed that Creditor lacked standing, because he claimed it lacked a proper chain of assignment for the debt and challenged the count owed.  Ultimately, after exhausting his appeals, a final judgment was rendered in favor of Creditor. 

Separately, Debtor filed a lawsuit in state court, which was ultimately amended to assert that because Creditor “did not own the debt, [it] lacked standing to sue him and the judgment in the collection case was void.”  Slip Op. at 4.  Debtor also asserted claims against Creditor and its attorneys under the FDCPA and related state statutes premised upon his theory that Creditor’s claim of ownership and the amount of the debt constituted “false, deceptive, or misleading statements,”  Slip Op. at 5, and alleged that the attorneys failed to engage in meaningful review of the lawsuit before filing, asserting this conduct also violated the FDCPA as articulated in Bock v. Pressler & Pressler, 30 F.Supp.3d 283 (D.N.J. 2014).

Creditor moved to dismiss, contending that Debtors claims were barred by res judicata, and collateral estoppel, and otherwise failed to state a viable claim for relief.  After determining that the law firm had not been properly served, the trial court granted Creditor’s motion to dismiss, and Debtor appealed.

Affirming, the Maryland intermediate appellate court held that Debtor’s attack on the judgment was barred under the doctrine of res judicata due to the prior judgment in the collection action.  The Court explained that under Maryland’s permissive counterclaim rules, a defendant “is not required to ‘raise or waive’ that counterclaim unless successful prosecution of it would nullify the other party’s claim  . . . .”  Slip Op. at 9 (Emphasis added). 

The Court observed that Debtor’s “explicit purpose” in arguing that Creditor lacked standing to sue him, was to render the collection case’s judgment a nullity.  Slip Op. at 12.  “Having failed to convince one trial court that jurisdiction was a problem, and having failed to appeal, [Debtor] does not get another bite at the apple, even if we were to assume that he was right (and we do not) about who owned his debt.  His collateral attack on the underlying debt judgment, then, is barred under res judicata.”  Slip Op. at 14-15.

Relying on Finch v. LVNV Funding LLC, 212 Md. App. 748 (2013), involving an alleged unlicensed debt collection agency, Debtor argued that “a void judgment ‘may be assailed at all times,’ and ‘[i]t does not constitute res judicata.’”  Slip Op. at 12.   Notably, the Finch Court held that “[a] complaint filed by an unregistered collection agency is a nullity, and any judgment entered on such a complaint is void.”  Slip Op. at 13 (citing Finch, 212 Md. App. at 761).

However, the Court found Finch inapposite, because Finch involved uncontested default judgments, whereas here, it was undisputed that Debtor raised his lack of standing argument in the collection case.  Slip Op. at 14.  Because Debtor had raised the issue in the collection case, he could not use that same issue to collaterally attack the judgment in a subsequent lawsuit.  See Op. at 14  (“[W]here the issue of jurisdiction is raised and determined in favor of the jurisdiction, the ensuing judgment on the merits is not open to later collateral attack on the jurisdictional issue, whether or not the determination therein was erroneous.”) (citation omitted).

As to the FDCPA and state law consumer protection claims, the Court determined that such claims “are not necessarily barred by the doctrine of res judicata/claim preclusion if they are not asserted [in the collection action], because they do not attack a debt collection judgment per se.”  Slip Op. at 18.  However, “[w]hen a party tries to use one of these statutes to attack a judgment against him or her collaterally . . . res judicata/claim preclusion normally bars the attack.”  Slip Op. at 17.  Nevertheless, assuming without deciding that the FDCPA and related claims were not barred by res judicata (i.e., claim preclusion) the Court determined that they were, in any event, barred by collateral estoppel (i.e., issue preclusion).

“[W]hen [an] issue of fact . . . is actually litigated and determined by a valid final judgment, and that determination is essential to the judgment, the determination is conclusive in a later action between the parties, whether the same or different claim is asserted.”  Slip Op. at 18 (citations omitted).  Because Debtor’s FDCPA and related claims were predicated on allegations decided against him in the collection case--i.e., a judgment for a sum certain in favor of Creditor, despite his challenge to its ownership--those claims could not be re-litigated. 

Finally, the Court rejected Debtor’s claim that Creditor’s counsel (also a defendant) “could not establish that a meaningful review of [Debtor]’s file occurred before filing suit.”  Slip Op. at 19.  Notably, the Court expressly declined to adopt the New Jersey federal court’s interpretation of the FDCPA in Bock v. Pressler & Pressler, 30 F.Supp.3d 283 (D.N.J. 2014), which held that a lawyer violated the FDCPA by filing a lawsuit without meaningful review by an attorney, where the attorney had conceded that he only spent four seconds reviewing the complaint against a debtor. 

In this case, Debtor asserted that Creditor’s counsel had signed thousands of other complaints filed in the same month as the complaint filed against him.  Slip Op. at 19.  Rejecting Bock, the Court explained that such allegation “is not conclusive of the question of meaningful attorney involvement.”  Slip Op. at 20.  Notably, Creditor’s counsel “could have worked every day that month at twelve hours a day, and turned out 2000 complaints, giving him a full eleven minutes per complaint on average, compared to Bock’s four seconds.  Counsel could have short-shifted every other complaint filed that month and spent hours working on [Debtor]’s, and that would still be consistent with the facts [Debtor] has alleged. On a Bock theory—which again, we have not adopted—it is still [Debtor]’s burden to allege actual facts that, if believed, would demonstrate a lack of meaningful attorney involvement in his case. . . .  He has failed to do so.  And this case is hardly rocket science—the appellees alleged, and proved in the collection case, that they acquired a credit-card debt that remained unpaid, and it did not require complicated pleadings or cutting-edge research to prepare the case for filing or trial.”   Slip Op. at 20-21.

Accordingly, the intermediate appellate court affirmed the dismissal of the complaint with prejudice.

4th Cir. Holds Allegations of Verbal Notice of Bankruptcy Sufficient to State Claim for Willful Violation of Automatic Stay; Debtor Can Bring Suit in District Court

In Houck v. Substitute Trustee Services, Inc., et al., the United States Court of Appeals for the Fourth Circuit determined that a debtor alleged a plausible claim under 11 U.S.C. § 362(k), so as to survive a motion to dismiss, against a foreclosure trustee (the Substitute Trustee) for willful violation of the automatic stay where she alleged the trustee sold her homestead at a foreclosure sale after her fiancé had called to verbally notify them of her bankruptcy filing.  Rejecting the trustee’s argument that a willful violation required written notice, the Court explained that Section 362(k) “does not include any provision that a particular form of notice be given. Rather, it imposes liability for a willful violation of the automatic stay.”  Op. at 29.

A copy of the opinion is available here. 

In Houck, the Debtor filed a Chapter 11 bankruptcy petition, which stayed the North Carolina foreclosure proceedings filed against her.  A few weeks later, the bankruptcy court dismissed the bankruptcy petition, because the Debtor failed to file the requisite bankruptcy schedules.  Less than 180 days after dismissal, a subsequent sale was scheduled.  Prior to the sale, Debtor filed a second bankruptcy petition.  Debtor claimed that, on the same day, her fiancé called the Substitute Trustee’s lawyers to notify the firm of the bankruptcy filing, spoke with an employee who acknowledged they had a file for the Debtor, and provided the case number for the bankruptcy proceeding to the employee.  Debtor also claimed her fiancé called the lender to inform it of the bankruptcy filing as well, who indicated that it would wait for notice from the bankruptcy court before taking any action.

Nevertheless, two days later, the bankruptcy court ordered Debtor to show cause why her petition should not be dismissed.  Another two days later, the Substitute Trustee sold the homestead at a foreclosure sale.  Thereafter, the following day the bankruptcy court dismissed the second bankruptcy petition.

Debtor filed an action in the federal district court asserting a claim for a willful violation of the automatic stay under § 362(k) of the Bankruptcy Code, which provides in pertinent part, “an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.”  11 U.S.C. §362(k)(1).

The district court dismissed the claims against the Substitute Trustee, determining that Debtor failed to allege that the Substitute Trustee was aware of the bankruptcy petition at the time it conducted the foreclosure sale, concluding that Debtor had “failed to allege that [she] sent notice of the second petition to [the Substitute Trustee] or that [the Substitute Trustee] had any notice of the [bankruptcy] petition.”  Op. at 6.  The Court also granted the lender’s motion to dismiss for lack of subject matter jurisdiction, which argued that Debtor’s § 362(k) claim could not be adjudicated outside of the bankruptcy court.  Id.  On appeal, the Fourth Circuit reversed.

As an initial matter, the Court rejected the argument the Debtor’s claim should have been brought in the bankruptcy court rather than the district court, holding that “the district court had subject matter jurisdiction over Houck’s § 362(k) claim and therefore that the court had authority to rule on the Substitute Trustee’s motion to dismiss Houck’s claims against it, . . . .”  Op. at 22.

The Court explained that a claim under 11 U.S.C. § 362(k) “creates a cause of action for an individual injured by a violation of the automatic stay imposed by § 362(a). To recover under § 362(k), a plaintiff must show (1) that the defendant violated the stay imposed by § 362(a), (2) that the violation was willful, and (3) that the plaintiff was injured by the violation. See, e.g., Garden v. Cent. Neb. Hous. Corp., 719 F.3d 899, 906 (8th Cir. 2013).” Op. at 24-25.

Disagreeing with district court, the Fourth Circuit determined that “the complaint adequately alleged that the Substitute Trustee had notice of Houck’s second bankruptcy petition and that Houck sustained injury as a result of the violation.” Op. at 25.  Notably, Debtor had alleged that she had noticed the lender in her bankruptcy petition itself, that her fiancé called both the Substitute Trustee and the lender, that the lender received notice through PACER, and that defendants “were noticed of the second petition the same way they were under notice of the first petition.” Op. at 27.  

The Court rejected the Substitute Trustee’s argument that it could not have willfully violated the automatic stay because it did not have written notice before it sold the homestead, noting that the requirements of § 362(k) “[do] not include any provision that a particular form of notice be given. Rather, it imposes liability for a willful violation of the automatic stay.”  Op. at 29.

The Court also determined that the complaint alleged injuries, noting that the Complaint alleged that Debtor and her fiancé were forced to move from the homestead to a smaller cabin, they suffered certain enumerated losses relating the loss of income from the property, loss of the use and possession of the property, as well as emotional injury. 

Finally, the Court rejected the trustee’s argument that no stay was in effect under 11 U.S.C. § 362(b)(21)(A) because the debtor was an “ineligible debtor” pursuant 11 U.S.C. § 109(g)(1), which bars an individual from being a bankruptcy debtor where a prior bankruptcy had been dismissed within 180 days of a subsequent bankruptcy petition and “the case was dismissed for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case; . . .”  Id.  The Court noted that neither the Substitute Trustee nor the record established that the Debtor had willfully failed to abide by the bankruptcy court’s order, and such determination “is a fact bound question that requires evidentiary support.”  Op. at 32.

Accordingly, the Fourth Circuit vacated the dismissal of the complaint, and remanded the case to the district court for further proceedings.