FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADOLFO BARRIENTOS; MARIA No. 09-55810
ENRIQUETTA BARRIENTOS,
Plaintiffs- Appellants, D.C. No.
v. 08-CV-463-WQH-
BLM
WELLS FARGO BANK, N.A.,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted
November 2, 2010—Pasadena, California
Filed February 10, 2011
Before: Johnnie B. Rawlinson and Milan D. Smith, Jr.,
Circuit Judges, and Robert C. Jones,* District Judge.
Opinion by Judge Jones
*The Honorable Robert C. Jones, United States District Judge for the
District of Nevada, sitting by designation.
2467
BARRIENTOS v. WELLS FARGO BANK 2469
COUNSEL
Kristin Rose Lamar, and Michael G. Doan, Doan Law Firm,
LLP, Carlsbad, California, for the appellant.
John M. Sorich, S. Christopher Yoo, and Valerie K. Brennan,
Adorno Yoss Alvarado & Smith, PC, Santa Ana, California,
for the appellee.
2470 BARRIENTOS v. WELLS FARGO BANK
OPINION
JONES, District Judge:
Appellant Adolfo Barrientos filed for Chapter 7 bankruptcy
and obtained a discharge of debt under 11 U.S.C. § 524.
According to Appellant’s complaint, however, certain credit
reporting agencies continued to report Appellant’s previous
debt to Appellee Wells Fargo Bank, N.A. When Appellant
disputed the debt, one or more of the agencies contacted
Appellee, who allegedly verified a debt of $80,831 in viola-
tion of § 524.
Appellant filed an adversary complaint on April 27, 2007.
The First Amended Adversary Complaint (“FAAC”) con-
tained a single cause of action for contempt for violation of
§ 524, seeking an injunction, a “coercive fine,” declaratory
relief, and attorney’s fees. Appellee filed a motion to dismiss
pursuant to Rule 12(b)(6), which the bankruptcy court granted
on January 31, 2008, ruling that under Walls v. Wells Fargo
Bank, N.A., 276 F.3d 502, 506-07 (9th Cir. 2002), § 105
creates no private right of action to sue for a violation of
§ 524. The district court affirmed on May 27, 2009 under
Walls, and noted that Appellant’s remedy was to seek a con-
tempt order directly in the bankruptcy court.
Appellant timely appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1291. We affirm. A motion for contempt for
violation of a discharge injunction under § 524 must be
brought via motion in the bankruptcy case, not via an adver-
sary proceeding.
I. Standard of Review
We review a district court’s decision on an appeal from a
bankruptcy court de novo, with no deference given to the dis-
trict court’s decision. See Barclay v. McKenzie (In re AFI
Holding, Inc.), 525 F.3d 700, 702 (9th Cir. 2008). A bank-
BARRIENTOS v. WELLS FARGO BANK 2471
ruptcy court’s decision to dismiss an action for failure to state
a claim is reviewed de novo, see Zimmer v. PSB Lending
Corp. (In re Zimmer), 313 F.3d 1220, 1222 (9th Cir. 2002),
as is its interpretation of the bankruptcy code, see Blausey v.
U.S. Tr., 552 F.3d 1124, 1132 (9th Cir. 2009).
II. Procedure to Seek an Order of Contempt for a
Violation of § 524
A. The Civil Contempt Power of the Bankruptcy
Court
[1] Prior to the Bankruptcy Amendments and Federal
Judgeship Act of 1984, bankruptcy judges had implied power
to hold litigants in civil contempt just as Article III judges
have. 2 Collier on Bankruptcy ¶ 105.02[1][b] (Alan N. Resn-
ick & Henry J. Sommer eds., 16th ed. 2009). Since 1984,
however, the civil contempt power of bankruptcy judges has
been based on § 105 of the Bankruptcy Code. Id.; see 11
U.S.C. § 105.
B. There is No Private Right of Action for a Discharge
Violation
[2] We have previously ruled after significant discussion
that the availability of contempt proceedings under § 105 for
violation of a discharge injunction under § 524 does not create
a private right of action for damages. See Walls, 276 F.3d at
507-10 (affirming a district court’s dismissal of a claim under
§ 524 brought in the district court). We noted that the remedy
of contempt was available directly in the core bankruptcy pro-
ceedings:
Implying a private remedy here could put enforce-
ment 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
2472 BARRIENTOS v. WELLS FARGO BANK
judge whose discharge order gave rise to the injunc-
tion. This makes a good deal of sense, given that the
equities at issue are bankruptcy equities, and it
would undermine Congress’s deliberate decision to
place supervision of discharge in the bankruptcy
court:
Since 1898, in all but extraordinary situa-
tions the effect of a discharge had been a
matter which would be determined only in
a state court or, where there was some
ground of jurisdiction other than the
involvement of the discharge, in a federal
court. Congress became convinced that rel-
egating a discharged bankrupt to other
courts for vindication of his discharge
resulted so often in the loss of its intended
benefit and frustration of the objective of
the federal legislation that jurisdiction of
determining the effect of a discharge was
given to the bankruptcy court.
Id. at 509-10 (quoting Report of the Commission on the
Bankruptcy Laws of the United States, H.R. Doc. No. 137,
93d Cong., 1st Sess. (1973), quoted in H.R. Rep. No. 95-595
at 46-47 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6008).
[3] Appellant argues that although we held in Walls that
there is no private right of action for damages under § 524, we
did not hold that adversary proceedings under Bankruptcy
Rule 7001 were therefore necessarily unavailable as a vehicle
to enforce § 524. None of the cases cited by the parties
addresses this question in so many words, but our holding in
Walls supports such a conclusion. Specifically, we reasoned
that Congress did not intend for enforcement of a discharge
order to be left to any other judge than the bankruptcy judge
who issued the order, see id., which would be a possible result
if an adversary proceeding were available to pursue contempt
BARRIENTOS v. WELLS FARGO BANK 2473
for violation of a discharge order. We therefore rule that
Walls is sufficient to dispose of the present case. However,
even in the absence of Walls, it appears that the Bankruptcy
Rules require that an action for contempt arising out of the
violation of an order issued in a bankruptcy case must be
brought by motion in the bankruptcy case.
C. Contested Matters Versus Adversary Proceedings
[4] Bankruptcy Rule 9020 provides that Bankruptcy Rule
9014 governs contempt proceedings in bankruptcy. Fed. R.
Bankr. P. 9020 (“Rule 9014 governs a motion for an order of
contempt made by the United States trustee or a party in inter-
est.”). Bankruptcy Rule 9014 in turn is the rule that governs
contested matters. See Fed. R. Bankr. P. 9014(a). In other
words, a contempt proceeding by the United States trustee or
a party in interest in bankruptcy is a contested matter. (Id.;
Fed. R. Bankr. P. 9020; see 10 Collier on Bankruptcy
¶ 9020.02 (Alan N. Resnick & Henry J. Sommer eds., 15th
ed. rev. 2007)). Bankruptcy Rule 9014 adopts many proce-
dures from Part VII of the Bankruptcy Rules (which governs
adversary proceedings), but not all such procedures. See Fed.
R. Bankr. P. 9014(c).
[5] “Contested matter” in the bankruptcy context is a term
of art. There is a distinction among “contested matters,” “ad-
versary proceedings,” and “administrative matters.” See 10
Collier on Bankruptcy ¶ 9014.01 (Alan N. Resnick & Henry
J. Sommer eds., 15th ed. rev. 2007). Administrative matters
are those issues that are not contested, such as unopposed
motions. Id. Adversary proceedings are a species of contested
matters governed by Part VII of the Bankruptcy Rules. Id. A
matter qualifies as an “adversary proceeding,” as opposed to
a “contested matter,” if it is included in the list given in Bank-
ruptcy Rule 7001. Id.; see Fed. R. Bankr. P. 7001. Otherwise,
it is a “contested matter.” See Fed. R. Bankr. P. 9014(a). Con-
tempt proceedings are not listed under Bankruptcy Rule 7001,
see Fed. R. Bankr. P. 7001, and are therefore contested mat-
2474 BARRIENTOS v. WELLS FARGO BANK
ters not qualifying as adversary proceedings. At oral argu-
ment, Appellant argued that because Bankruptcy Rule 9014
invokes certain rules utilized for adversary proceedings under
Part VII of the Bankruptcy Rules, any motion brought pursu-
ant to Bankruptcy Rule 9014 could also impliedly be brought
as an adversary proceeding. Such a construction does not fol-
low, and if adopted it would obliterate the difference between
contested matters and adversary proceedings, obviating the
list under Rule 7001, because under this construction any con-
tested matter under Bankruptcy Rule 9014 could necessarily
be brought as an adversary proceeding under Rule 7001.
[6] Appellant argues that contempt proceedings seeking to
enforce injunctions are impliedly included under subsection
(7) of Rule 7001, which includes “proceeding[s] to obtain an
injunction or other equitable relief, except when a chapter 9,
chapter 11, chapter 12, or chapter 13 plan provides for the
relief.” Fed. R. Bankr. P. 7001(7). A plain reading of Bank-
ruptcy Rule 9020 compels the contrary conclusion, however,
that contempt proceedings brought by the trustee or a party in
interest are contested matters that must be brought by motion
in the bankruptcy case under Bankruptcy Rule 9014. Bank-
ruptcy Rule 9020 in fact exists solely for the purpose of man-
dating this. It does nothing else.
Appellant might argue that Bankruptcy Rule 9020 only
applies to a “motion for an order of contempt,” and that he has
not filed a motion but an adversary proceeding. Such an argu-
ment would be wordplay. But even if Bankruptcy Rule 9020
did not apply, in order to qualify as an adversary proceeding,
the FAAC must fit within one of the categories listed in Bank-
ruptcy Rule 7001, and it does not. As pointed out at oral argu-
ment, Appellant specifically requests punitive damages in the
FAAC, and such damages are not a form of equitable relief.
[7] Appellant also prays for an injunction in the FAAC, but
he does not in fact seek any injunction he does not already
have, which is his only possible purchase onto Bankruptcy
BARRIENTOS v. WELLS FARGO BANK 2475
Rule 7001. See Fed. R. Bankr. P. 7001(7). An injunction
against violation of the discharge already exists by operation
of law. See 11 U.S.C. § 524(a)(2) (“A discharge in a case
under this title . . . operates as an injunction against the com-
mencement or continuation of an action, the employment of
process, or an act, to collect, recover or offset any such debt
as a personal liability of the debtor . . . .”). Plaintiff in reality
seeks a contempt order for the violation of an injunction that
already exists, regardless of how he has characterized his
prayer for relief in the FAAC. He cannot seek a second-order
injunction, as it were. An injunction against violating an exist-
ing injunction would be superfluous, adding no judicial action
and providing no additional relief. The remedy for violating
an injunction is not a repetitive injunction, but an order of
contempt. See 1 Dan B. Dobbs, Law of Remedies § 2.8(1), at
186-89 (2d ed. 1993). For this precise reason, the Second Cir-
cuit recently rejected the argument that Bankruptcy Rule
7001(7) permitted a litigant to demand an adversary proceed-
ing to enforce a violation of an existing discharge injunction.
See Kalikow v. Solow (In re Kalikow), 602 F.3d 82, 93-94 (2d
Cir. 2010) (affirming a district court’s affirmation of a bank-
ruptcy court’s decision to proceed by motion in the bank-
ruptcy case, and not by adversary proceeding, to enforce an
existing § 524 injunction). Furthermore, like in In re Kalikow,
where the appellants had prevailed despite the unavailability
of an adversary proceeding, see id. at 94-95, Appellant here
can allege no prejudice from the bankruptcy court’s require-
ment to proceed by motion rather than by adversary proceed-
ing, because he has failed to pursue the avenue of relief that
no court has denied is available to him: a motion in the bank-
ruptcy case.
[8] The district court correctly ruled that contempt pro-
ceedings for a violation of § 524 must be initiated by motion
in the bankruptcy case under Rule 9014 and not by adversary
proceeding.
2476 BARRIENTOS v. WELLS FARGO BANK
D. “Motions” Versus “Applications“
[9] Relief pursuant to a contested matter must “be
requested by motion.” Fed. R. Bankr. P. 9014(a). The rule
provides for service of the motion, application of certain rules
governing the resolution of adversary proceedings, and testi-
mony of witnesses taken in the same manner as in an adver-
sary proceeding. See Fed. R. Bankr. P. 9014(b)-(e).
Appellant argues that Local Rule of Bankruptcy Practice
9020, which requires an “application” for an order to show
cause under Local Rule of Bankruptcy Practice 9013, is
invalid because it conflicts with Bankruptcy Rule 9020, which
requires a “motion” under Bankruptcy Rule 9014(a). This is
a purely semantic distinction. Appellant argues that in the
Southern District of California, “an Application is more of a
request, a petition, and lacks the formalities of a motion.”
Aside from bare argumentation, Appellant cites to no local
rule delineating any difference in form or substance between
“motions” and “applications” in the Southern District of Cali-
fornia, and the words are generally considered synonymous.
See Black’s Law Dictionary 1106 (9th ed. 2009) (defining
“motion” as “[a] written or oral application requesting a court
to make a specified ruling or order” (emphasis added)).
[10] Moreover, Appellant did not in fact file any pleading,
however titled, for an order to show cause in the bankruptcy
case, so he cannot complain that the process required under
Bankruptcy Rule 9020 was not afforded to him due to an
inconsistent local rule. There is no indication that the bank-
ruptcy court would have refused to abide by Bankruptcy Rule
9020 had Appellant “applied” for an order to show cause
rather than having “moved” for one.
III. Conclusion
Because there is no private right of action for violation of
a § 524 discharge injunction, Walls, 276 F.3d at 507-10, and
BARRIENTOS v. WELLS FARGO BANK 2477
because we agree with the Second Circuit that an order of
contempt under § 105 to enforce an existing injunction must
be sought via motion in the bankruptcy action, see In re Kali-
kow, 602 F.3d at 93, the ruling of the district court is
AFFIRMED.