Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
A man’s Fair Credit Reporting Act claim can be arbitrated even though the debt was addressed and discharged in bankruptcy
proceedings, the Indiana Court of Appeals ruled today.
Brian Brough entered into a contract with Green Tree Servicing, in which Green Tree loaned Brough money to buy a mobile home.
The contract included an arbitration clause. Brough also agreed that Green Tree could share information about him and his
account with credit reporting agencies.
Brough defaulted on the contract and filed for bankruptcy in 2003. His debt to Green Tree was addressed in the proceedings
and the bankruptcy court discharged Brough’s petition in November 2008. Green Tree then filed a suit against Brough,
which wasn’t identified in the appeal, and Brough filed a counterclaim alleging Green Tree violated the Fair Credit
Reporting Act by reporting to credit agencies that he still owed the company a debt under the contract even though the matter
was discharged in bankruptcy.
The trial court granted Brough’s request to vacate the arbitration order.
At issue in Green
Tree Servicing LLC v. Brian D. Brough, No. 88A01-0911-CV-550, is whether the FCRA claim is subject to the arbitration
provision in the contract.
The appeals court looked to U.S. District Court rulings from New York and Illinois to conclude that FCRA claims can be subject
to arbitration clauses. In addition, Brough even admitted his claim is subject to the arbitration clause, noted Senior Judge
John Sharpnack.
The judges also disagreed with Brough’s argument that the whole contract is not valid because it was terminated by
his bankruptcy discharge. Again, the court looked outside of Indiana for authority and relied on In re Wells Fargo Bank,
N.A., 300 S.W.3d 818 (Tex. Ct. App. 2009). In that case, homeowners who defaulted on a home equity loan and filed for bankruptcy
claimed they didn’t have to arbitrate the suit they filed against the lender because the bankruptcy proceedings released
them from any further obligations under their agreements with the lender, including an agreement to arbitrate. The Texas appellate
court ruled the arbitration agreement survived bankruptcy.
As is the case In re Wells, Brough’s bankruptcy proceeding ended, so the arbitration of his FCRA claim won’t
jeopardize the bankruptcy case or affect his discharge, wrote Senior Judge Sharpnack. The contract’s arbitration clause
wasn’t terminated by his bankruptcy discharge. The trial court must order the parties to attend arbitration.
Please enable JavaScript to view this content.