Sending anonymous text messages and emails alleging that the debtor engaged in “numerous extramarital affairs” does not violate the automatic stay, even if the sender is a creditor, according to Bankruptcy Judge Karen S. Jennemann of Orlando, Fla.
Judge Jennemann granted summary judgment in favor of the creditor, saying that the communications weren’t intended to coerce payment of a debt but were “communications . . . sent by a spurned romantic partner.” Granting summary judgment allowed Judge Jennemann to avoid holding a trial to decide whether the creditor had actually sent the messages.
The Salacious Messages
The debtor and the creditor had been both romantic and business partners. Both relationships failed, gestating litigation and giving birth to a “substantial” monetary settlement in favor of the creditor. The debtor filed a chapter 7 petition the next year.
Bankruptcy spawned a “spiderweb of litigation between the parties,” Judge Jennemann said in her April 29 opinion. The allegations by the debtor read like page six of a tabloid.
The debtor claimed that the creditor had sent eight anonymous text messages to the debtor’s spouse, daughter and family friends exposing an alleged extramarital affair with the debtor’s accountant. One of the messages went to the accountant’s spouse.
In addition, the debtor alleged that the creditor had created a fake email account forwarding a “romantic email” to the debtor’s spouse that the debtor allegedly had sent to yet another paramour.
Besmirching Reputation Isn’t a Stay Violation
According to Judge Jennemann, the debtor charged that the text messages and emails were not sent “in a pique of anger over a failed romantic relationship.” Rather, the debtor argued that the communications were an indirect attempt at collecting a debt in violation of the automatic stay under Section 362(a)(6). The debtor sought punitive damages under Section 362(k) for a “willful” violation of the automatic stay.
The debtor assigned a shrewd tactic to the messages: The creditor was hoping to cause the debtor to divorce, ending the ownership of property as tenants by the entireties and increasing the value of assets for distribution to creditors.
The creditor filed a motion for summary judgment and won, even though there was a “vigorously disputed” question of fact as to whether the creditor had sent the messages. Even if the creditor were the sender, Judge Jennemann said there was no factual dispute over whether the creditor sent the messages to “collect, assess or recover a claim” in violation of Section 362(a)(6).
Judge Jennemann conceded that “indirect coercion may constitute a stay violation” but must be made to harass or coerce a debtor into paying a pre-petition debt. She quoted a court for saying that “[h]arassment does not violate the stay simply because it is directed toward a debtor by a creditor. A violation occurs only where the harassment is aimed at collecting a prepetition debt.” She cited several courts for finding no stay violation when the harassment was “remote and disassociated from the collection of a prepetition debt.”
“No reader would conclude the communications were an indirect coercion to get Debtor to pay” because “none of the challenged texts and emails even hint at collecting a prepetition debt,” Judge Jennemann said. Rather, they “besmirch [the debtor’s] reputation by claiming [that the debtor] engaged in numerous extramarital affairs.”
Even if they came from the creditor, the messages were motivated by “rancor and deterioration of the personal relationship,” Judge Jennemann said. She concluded that the “connection between the personal communications about Debtor’s romantic exploits and the debt due to [the creditor] is simply too attenuated to show any violation of the automatic stay.”
Finding as a matter of law that the messages were not made to recover a claim, Judge Jennemann granted summary judgment in favor of the creditor and dismissed the adversary proceeding.
Sending anonymous text messages and emails alleging that the debtor engaged in “numerous extramarital affairs” does not violate the automatic stay, even if the sender is a creditor, according to Bankruptcy Judge Karen S. Jennemann of Orlando, Fla.
Judge Jennemann granted summary judgment in favor of the creditor, saying that the communications weren’t intended to coerce payment of a debt but were “communications . . . sent by a spurned romantic partner.” Granting summary judgment allowed Judge Jennemann to avoid holding a trial to decide whether the creditor had actually sent the messages.
The Salacious Messages
The debtor and the creditor had been both romantic and business partners. Both relationships failed, gestating litigation and giving birth to a “substantial” monetary settlement in favor of the creditor. The debtor filed a chapter 7 petition the next year.
Bankruptcy spawned a “spiderweb of litigation between the parties,” Judge Jennemann said in her April 29 opinion. The allegations by the debtor read like page six of a tabloid.
The debtor claimed that the creditor had sent eight anonymous text messages to the debtor’s spouse, daughter and family friends exposing an alleged extramarital affair with the debtor’s accountant. One of the messages went to the accountant’s spouse.
In addition, the debtor alleged that the creditor had created a fake email account forwarding a “romantic email” to the debtor’s spouse that the debtor allegedly had sent to yet another paramour.