FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINCENT MANIKAN, No. 19-55393
Plaintiff-Appellant,
D.C. No.
v. 3:17-cv-00467-
BEN-JLB
PETERS & FREEDMAN, L.L.P.; DOES,
1–10,
Defendants-Appellees, OPINION
and
N.N. JAESCHKE, INC.; ADVANCED
ATTORNEY SERVICES, INC.,
Defendants.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted June 19, 2020
Pasadena, California
Filed November 25, 2020
2 MANIKAN V. PETERS & FREEDMAN LLP
Before: Kim McLane Wardlaw, Deborah L. Cook, * and
Danielle J. Hunsaker, Circuit Judges.
Opinion by Judge Hunsaker
SUMMARY **
Fair Debt Collection Practices Act / Bankruptcy
Reversing the district court’s summary judgment in
favor of defendants in an action under the Fair Debt
Collection Practices Act, and remanding, the panel held that
the plaintiff’s claims were not precluded by the Bankruptcy
Code.
The plaintiff alleged that defendant debt collectors
violated the FDCPA by attempting to collect a debt that was
discharged in bankruptcy and was no longer owed. Walls v.
Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir. 2002),
precludes FDCPA claims premised on a violation of a
bankruptcy discharge order. The panel held that Walls did
not preclude the plaintiff’s claim, based on a debt that was
fully satisfied through a Chapter 13 plan before discharge
was entered, because whether an unfair debt collection
practice occurred did not depend on issuance or enforcement
of the discharge order.
*
The Honorable Deborah L. Cook, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MANIKAN V. PETERS & FREEDMAN LLP 3
COUNSEL
Ahren A. Tiller (argued), BLC Law Center APC, San Diego,
California, for Plaintiff-Appellant.
Leah S. Strickland (argued) and Thomas Landers, Solomon
Ward Seidenwurm & Smith LLP, San Diego, California, for
Defendants-Appellees.
OPINION
HUNSAKER, Circuit Judge:
The question in this case is whether our decision in Walls
v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir. 2002),
precludes claims under the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. § 1692 et seq., that are not based
on a violation of a bankruptcy discharge order. Because we
conclude that Walls does not extend to this circumstance, we
reverse and remand.
I. BACKGROUND
Vincent Manikan lives and owns a home in San Diego,
California located in the Pacific Ridge Neighborhood
Homeowners’ Association (HOA) to which he pays monthly
HOA dues. In January 2009, he fell behind on his dues, and
Peters & Freedman, LLP (P&F), a law firm acting as a debt
collector for the HOA, sent Manikan notices regarding his
unpaid dues. Nearly three years later, P&F recorded a
“Notice of Delinquent Assessment/Lien” on the HOA’s
behalf with the San Diego County Recorder’s Office. The
notice claimed the HOA had a lien of $1,539.00 plus any
additional assessment and costs for unpaid HOA dues.
Thereafter, P&F recorded a “Notice of Default and Election
4 MANIKAN V. PETERS & FREEDMAN LLP
to Sell” with San Diego County, initiating nonjudicial
foreclosure proceedings.
After the foreclosure proceedings were initiated,
Manikan filed for Chapter 13 bankruptcy. He designated the
HOA as a secured creditor in his bankruptcy petition and
valued the HOA’s claim at $3,046.04. He also confirmed
that he would pay the total HOA arrears through his
proposed bankruptcy plan and that he would pay his ongoing
HOA dues directly to the HOA. P&F filed a proof of claim
for the HOA in the amount of $2,978.24. Ultimately,
Manikan’s Chapter 13 bankruptcy plan was confirmed.
N.N. Jaeschke, Inc., a property management and debt
collection company, received Manikan’s HOA arrearage
payments paid pursuant to the bankruptcy plan. In March
2014, N.N. Jaeschke told the bankruptcy trustee that the
HOA debt was “paid in full.” Because the amount paid on
the debt was less than the amount stated in the HOA’s proof
of claim, the trustee adjusted the claim to reflect what was
paid and issued a notice stating the HOA’s claim was
“deemed as fully paid.” 1 Over a year and a half later, the
bankruptcy trustee filed a “Notice of Final Cure Payment
and Completion of Payments Under the Plan,” again
verifying the HOA debt was paid in full. Two months later,
the bankruptcy court entered an order of discharge in
Manikan’s case.
What happened next brings us to the dispute in this case.
Even though the debt had long been paid off and a
bankruptcy discharge was entered, P&F hired Advanced
Attorney Services (AAS) to re-serve Manikan with the same
1
The amount paid to satisfy the debt was $2,277.10. The HOA’s
proof of claim filed by P&F stated the amount owed was $2,978.24.
MANIKAN V. PETERS & FREEDMAN LLP 5
Notice of Default that P&F recorded when it first initiated
foreclosure proceedings in 2012. The process server entered
Manikan’s backyard without permission by breaking a
closed gate. The process server then banged on Manikan’s
windows, startling Manikan, his cousin, and his elderly
mother. Someone from Manikan’s household called the
police and after they arrived, the process server identified
himself and served Manikan with the 2012 Notice of
Default.
After this incident, Manikan called P&F and explained
that he fully paid his HOA debt, but P&F responded that its
records still showed an unpaid balance. After further review,
P&F located a communication from N.N. Jaeschke stating
that the HOA debt was fully paid. P&F then contacted N.N.
Jaeschke to determine if the debt was still owed. P&F now
admits there was no balance owing when it hired the process
server to serve Manikan with the 2012 Notice of Default.
Manikan sued P&F for unfair debt collection practices 2
and moved for partial summary judgment, arguing that
P&F’s violation of the FDCPA was established as a matter
of law because it attempted to collect a debt that was no
longer owed and that P&F’s agent, AAS, violated the
FDCPA in attempting to collect the debt. P&F cross-moved,
arguing that Manikan’s FDCPA claims were precluded
under Walls v. Wells Fargo Bank, N.A. because the HOA
debt was discharged in bankruptcy. The district court denied
Manikan’s partial motion and granted P&F’s motion,
concluding that Manikan’s FDCPA claims were precluded
“because they are premised upon violations of the
2
Manikan also sued the HOA, N.N. Jaeschke, and AAS. Each of
these defendants was dismissed below, and the claims against them are
not at issue on appeal.
6 MANIKAN V. PETERS & FREEDMAN LLP
bankruptcy post-discharge injunction.” Manikan v. Pac.
Ridge Neighborhood Homeowners Ass’n, No. 3:17-cv-
00467-BEN-JLB, 2019 WL 1294007, at *4 (S.D. Cal. Mar.
21, 2019). Manikan timely appealed, and we have
jurisdiction under 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo.
United States v. Phattey, 943 F.3d 1277, 1280 (9th Cir.
2019). Viewing the evidence in the light most favorable to
the nonmoving party, we determine whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law. Id.
III. DISCUSSION
A. Is Manikan’s HOA Debt Dischargeable?
As a threshold matter, we address Manikan’s assertion
that his pre-petition debt was never discharged because he
repaid his debt before the discharge order was issued.
Section 1328(a) of the Bankruptcy Code states that after the
payments required under a confirmed Chapter 13 bankruptcy
plan are completed, the bankruptcy court, with certain
enumerated exceptions, “shall grant the debtor a discharge
of all debts provided for by the plan.” 11 U.S.C. § 1328(a)
(emphasis added). The phrase “provided for” in § 1328(a)
“mean[s] that a plan makes a provision for, deals with, or
even refers to a claim.” Rake v. Wade, 508 U.S. 464, 477
(1993) (internal quotation marks omitted), superseded on
other grounds by statute, Bankruptcy Reform Act of 1994,
Pub. L. No. 103-394 § 305, 108 Stat. 4106–34, as recognized
in In re New Invs., Inc., 840 F.3d 1137, 1141 (9th Cir. 2016);
see also In re Gregory, 705 F.2d 1118, 1122 (9th Cir. 1983).
MANIKAN V. PETERS & FREEDMAN LLP 7
Here, the HOA’s proof of claim in Manikan’s Chapter
13 bankruptcy case related only to his pre-petition arrearage.
This pre-petition debt was “provided for” in Manikan’s
confirmed bankruptcy plan. 11 U.S.C. § 1328(a). Because
Manikan repaid this debt through operation of the confirmed
plan, the bankruptcy court granted Manikan a discharge of
his pre-petition arrearage. We therefore reject the assertion
that Manikan’s debt was never discharged. Nonetheless, as
explained below, this is not determinative of whether Walls
precludes Manikan from pursuing his FDCPA claims.
B. Does Walls preclude Manikan’s FDCPA claim?
Walls held that a debtor is precluded from bringing a
FDCPA claim premised on a violation of a bankruptcy
discharge order. 276 F.3d at 510–11. This case presents a
slightly (but notably) different question: Whether a debtor is
precluded from bringing a FDCPA claim when the debt at
issue was fully satisfied through a Chapter 13 plan before
discharge was entered. We now hold that Walls does not
preclude FDCPA claims in such circumstances because
whether an unfair debt collection practice occurred does not
depend on issuance or enforcement of the discharge order.
1. Walls v. Wells Fargo Bank, N.A.
In Walls, a debtor sued her mortgage creditor for
foreclosing on her house after she received a Chapter 7
discharge. 276 F.3d at 505. The debtor sought relief under
11 U.S.C. § 524 of the Bankruptcy Code for willful violation
of the discharge order and under 15 U.S.C. § 1692f of the
FDCPA for unfair and unconscionable debt-collection
practices. Id. Because the district court found that the proper
remedy for violating the discharge order is a contempt
proceeding pursuant to 11 U.S.C. § 105(a), it referred the
8 MANIKAN V. PETERS & FREEDMAN LLP
debtor’s claims of contempt to the bankruptcy court and
dismissed the remaining claims. Id.
On appeal, the debtor argued that Congress created an
implied private right of action to seek relief for violations of
a discharge order. Id. at 506–10. We disagreed, declining to
“expand the remedies available under the Bankruptcy Code
for violating § 524.” Id. at 507. We explained that
“[i]mplying a private remedy here could put enforcement of
the discharge injunction in the hands of a court that did not
issue it (perhaps even in the hands of a jury), which is
inconsistent with the present scheme that leaves enforcement
to the bankruptcy judge whose discharge order gave rise to
the injunction.” Id. at 509.
We also rejected the debtor’s attempt to pursue a
simultaneous FDCPA claim because it “would allow
through the back door what [the debtor could not]
accomplish through the front door—a private right of
action.” Id. at 510. Under the circumstances of that case,
there was “no escaping that [the debtor’s] FDCPA claim
[wa]s based on an alleged violation of [the discharge
injunction]” and that resolving her claims, therefore,
“necessarily entail[ed] bankruptcy-laden determinations.”
Id. Thus, to allow the FDCPA claim to proceed would also
circumvent the balance of interests struck by Congress in the
Bankruptcy Code. Id.
2. Are Manikan’s FDCPA claims based on violation of
his discharge order?
P&F contends that Walls categorically bars a discharged
debtor’s FDCPA claims brought against a creditor seeking
to collect a debt that was provided for in a bankruptcy
proceeding. P&F reads Walls too broadly, and we decline to
extend Walls to preclude claims that are not premised on a
MANIKAN V. PETERS & FREEDMAN LLP 9
violation of a bankruptcy discharge order. In Walls, the
FDCPA claim depended on the discharge injunction. Stated
another way, the debtor had no basis independent from the
discharge order to show that the creditor acted unlawfully.
The lawfulness of the creditor’s actions stood or fell on the
entry of discharge and the accompanying injunction. And we
instructed that claims brought outside of bankruptcy
contempt proceedings that seek remedies for violation of the
discharge injunctions fail “no matter how cast.” Id. at 511.
This case is different. Manikan does not seek to remedy
a violation of his discharge order. Instead, he alleges P&F
acted unlawfully because it tried to collect a debt that he fully
paid nearly two years before his discharge. 3 So, even if
Manikan had never received a discharge in his bankruptcy
case, he could still assert P&F acted unlawfully by
attempting to collect a debt that he fully satisfied. Manikan’s
FDCPA claims are therefore premised on a wholly
independent theory of relief. 4
3
P&F does not dispute that Manikan paid his debt in full well before
he received his discharge and that P&F reinitiated foreclosure when there
was no debt owing.
4
We note that the debtor in Walls alleged FDCPA violations under
only 15 U.S.C. § 1692f, see 276 F.3d at 505, whereas Manikan alleges
violations under Sections 1692e, 1692f, and 1692d. Although Manikan’s
claims brought under § 1692e and § 1692f are premised on the theory
that P&F attempted to collect a debt that was already paid, his § 1692d
claim is different. Because that section generally prohibits “any conduct
the natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt,” 15 U.S.C. § 1692d,
his claim under that provision is premised on the debt-collection
techniques used rather than P&F’s unlawful attempt to collect a fully
paid debt. But this distinction makes no difference to the outcome
10 MANIKAN V. PETERS & FREEDMAN LLP
It may be that Manikan could have relied on his
discharge order in alleging unlawful conduct by P&F. See
11 U.S.C. § 1328(a) (upon completion of all payments under
the plan, the bankruptcy “court shall grant the debtor a
discharge of all debts provided for by the plan . . .”). But he
did not, nor did he need to. And our decision in Walls does
not bar independent theories of recovery whenever violation
of the discharge order also is a potentially available theory
of recovery.
Nor does our holding in this case allow debtors to
improperly “circumvent the remedial scheme of the
[Bankruptcy] Code.” Walls, 267 F.3d at 510. Because
Manikan’s FDCPA claims are not premised on enforcing the
discharge order, they do not “necessarily entail[]
bankruptcy-laden determinations.” Id. The amount that
Manikan paid was dictated by the terms of his contract with
the HOA, not bankruptcy law. And just because he made his
arrearage payments through operation of a bankruptcy plan
does not render his FDCPA claims inextricably intertwined
with bankruptcy issues. Allowing Manikan’s FDCPA claims
to proceed will therefore not place the enforcement of
“complex, detailed, and comprehensive provisions” of the
Bankruptcy Code in the hands of the district court or a jury.
Id. (quoting MSR Expl., Ltd. v. Meridian Oil, Inc., 74 F.3d
910, 914 (9th Cir. 1996)). 5
because Manikan’s § 1692d claim also is wholly independent from the
bankruptcy discharge order.
5
Our reasoning in Walls might suggest that § 105(a) and § 524 of
the Bankruptcy Code preempted § 1692f of the FDCPA. But this cannot
be right—“federal statutes do not preempt other federal statutes.”
Swinomish Indian Tribal Cmty. v. BNSF R.R. Co., 951 F.3d 1142, 1153
(9th Cir. 2020) (citation omitted); see Randolph v. IMBS, Inc., 368 F.3d
MANIKAN V. PETERS & FREEDMAN LLP 11
P&F counters that Midland Funding LLC v. Johnson,
137 S. Ct. 1407 (2017), compels affirmance. But Midland
Funding does not conflict with our holding. There, the
Supreme Court held that filing a proof of claim that is
facially barred by the applicable statute of limitations is not
actionable under §1692e and § 1692f of the FDCPA. Id. at
1410–11. The Court explained that the creditor’s proof of
claim was not “false, deceptive, or misleading,” see
15 U.S.C. § 1692e, because it had a “right to payment,” see
11 U.S.C. § 101(5)(A), even after the applicable limitations
period had expired and rendered the claim unenforceable.
Midland Funding, 137 S. Ct. at 1410–13. Nor was the
creditor’s proof of claim “unfair” or “unconscionable,” see
15 U.S.C. § 1692f, because of the numerous “protections
available in a Chapter 13 bankruptcy proceeding.” Midland
Funding, 137 S. Ct. at 1413–14. The Court explained that it
“[did] not find in either the [FDCPA] or the Bankruptcy
Code good reason to believe that Congress intended an
ordinary civil court applying the [FDCPA] to determine
answers to . . . bankruptcy-related questions.” Id. at 1414.
The Court therefore declined to “authorize a new significant
bankruptcy-related remedy in the absence of language in the
[Bankruptcy] Code providing for it.” Id. at 1415.
As we have explained, the resolution of Manikan’s
claims does not hinge on bankruptcy-related questions. The
only determination necessary is whether he fully paid his
debt in 2014. This is easily resolved because Manikan’s full
726, 730 (7th Cir. 2004). Because Walls applies only where a debtor’s
FDCPA claim is premised on a violation of the discharge order, we agree
with the Second, Third, and Seventh Circuits that the Bankruptcy Code
did not implicitly repeal the FDCPA. See Garfield v. Ocwen Loan
Servicing, LLC, 811 F.3d 86, 91 (2d Cir. 2016); Simon v. FIA Card
Servs., N.A., 732 F.3d 259, 274 (3d Cir. 2013); Randolph, 368 F.3d
at 730.
12 MANIKAN V. PETERS & FREEDMAN LLP
payment is memorialized in multiple documents publicly
filed by both his creditor’s representative and the bankruptcy
trustee and because P&F does not dispute that Manikan fully
paid his HOA debt. Allowing Manikan’s FDCPA claims to
proceed therefore does not run afoul of Midland Funding.
C. Did Manikan abandon his vicarious liability claim?
P&F also argues that Manikan abandoned any claim that
P&F is vicariously liable for the actions of the AAS process
server. Specifically, P&F contends that, in Manikan’s
opposition to summary judgment, he did not argue that
P&F’s vicarious liability for the process server’s acts created
a genuine issue of material fact. This argument lacks merit.
An issue is abandoned only when a party has had “a full
and fair opportunity to ventilate its views” on the issue and
“instead chooses a position that removes the issue from the
case.” BankAmerica Pension Plan v. McMath, 206 F.3d 821,
826 (9th Cir. 2000). Here, the only question before the
district court was whether Walls precluded Manikan’s
FDCPA claims; neither party moved for summary judgment
on the issue of vicarious liability. Manikan therefore did not
have “a full and fair opportunity to ventilate its views” on
the vicarious-liability issue, id. at 826, and, in any event, we
decline P&F’s invitation to review this argument raised for
the first time on appeal, see In re Mortg. Elec. Registration
Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014). 6
6
We also decline to address P&F’s bona-fide-error defense because
the district court did not reach this issue. See In re Mortg. Elec.
Registration Sys., Inc., 754 F.3d at 780.
MANIKAN V. PETERS & FREEDMAN LLP 13
IV. CONCLUSION
Manikan’s FDCPA claims are based on the wholly
independent ground of full payment; they are not premised
on a violation of the discharge order. Thus, we conclude that
Walls and our discussion in that case about preserving the
balance Congress struck in giving the bankruptcy court
plenary authority to enforce its discharge orders does not
apply here. Accordingly, the district court’s grant of
summary judgment is
REVERSED and REMANDED for further
proceedings.