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Adolfo Barrientos; Maria v. Blm Wells Fargo Bank

February 10, 2011

ADOLFO BARRIENTOS; MARIA ENRIQUETTA BARRIENTOS,
PLAINTIFFS- APPELLANTS,
v.
BLM WELLS FARGO BANK, N.A.,
DEFENDANT-APPELLEE.



D.C. No.08-CV-463-WQH- Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

The opinion of the court was delivered by: Judge Jones

FOR PUBLICATION

OPINION

Argued and Submitted

November 2, 2010-Pasadena, California

Before: Johnnie B. Rawlinson and Milan D. Smith, Jr., Circuit Judges, and Robert C. Jones,* District Judge.

Opinion by

*The Honorable Robert C. Jones, United States District Judge for the District of Nevada, sitting by designation.

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 violation of § 524.

Appellant filed an adversary complaint on April 27, 2007. The First Amended Adversary Complaint ("FAAC") contained 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 contempt 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 ...


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