IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ALEDIA Q. JOHNSON, etc., )

 )

Plaintiff, ) PUBLISH

 )

v. ) CIVIL ACTION 14-0322-WS-C

 )

MIDLAND FUNDING, LLC, ) 

 )

Defendant. )

 ORDER

This matter is before the Court on the defendant’s motion to dismiss. (Doc. 

17). The parties have filed briefs in support of their respective positions, (Docs. 

17, 21, 22, 25, 27), and the motion is ripe for resolution. After careful 

consideration, the Court concludes the motion is due to be granted.

BACKGROUND

According to the complaint, (Doc. 1), the plaintiff filed for bankruptcy 

relief under Chapter 13. The defendant then filed a proof of claim that disclosed 

on its face that the claim is barred by the statute of limitations. The complaint 

alleges that this filing violated the Fair Debt Collection Practices Act (“the Act”), 

in that it was deceptive and misleading for purposes of 15 U.S.C. § 1692e and 

unfair and unconscionable for purposes of 15 U.S.C. § 1692f.

In Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), the 

Eleventh Circuit “consider[ed] whether a proof of claim to collect a stale debt in 

Chapter 13 bankruptcy violates” the Act and “answer[ed] this question 

affirmatively.” Id. at 1256-57. The defendant argues that dismissal nevertheless 

is required on two grounds: (1) “[a]ny claim Johnson might otherwise assert 

under the [Act] in this case is precluded by the Bankruptcy Code”; and (2) “[e]ven 

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 1 of 16
2

if Johnson’s claim were not precluded by the Bankruptcy Code, she still fails to 

state a claim under the [Act].” (Doc. 17 at 5, 16).

DISCUSSION

“There is no burden upon the district court to distill every potential 

argument that could be made based upon the materials before it on summary 

judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 

1995). The Court’s review on this motion to dismiss is similarly limited to those 

arguments the parties have expressly advanced. E.g., Jurich v. Compass Marine, 

Inc., 908 F. Supp. 2d 1225, 1228 (S.D. Ala. 2012).

The defendant’s second argument is essentially an extended and futile 

effort to deny and thereby avoid the ruling in Crawford. The only serious question 

presented by the defendant’s motion is whether tension between the Bankruptcy 

Code (“the Code”) and the Act precludes the plaintiff from pursuing her claim 

under the Act.1 That issue was not presented in Crawford, and the Eleventh 

Circuit expressly declined to consider it. 758 F.3d at 1262.

“The courts are not at liberty to pick and choose among congressional 

enactments, and when two statutes are capable of co-existence, it is the duty of the 

courts, absent a clearly expressed congressional intention to the contrary, to regard 

each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974); accord J.E.M. 

Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124, 143-44 

(2001). There are various ways of measuring and resolving the tension between 

federal statutes, but the parties agree to use the test requiring “irreconcilable 

conflict” between the provisions. (Doc. 17 at 4-5, 7, 16; Doc. 21 at 3, 7-12, 16, 

18, 21; Doc. 22 at 1, 3, 7, 9). 

 1 Litigants and courts sometimes use the word “preemption” in describing such an 

issue. Preemption, however, is properly used when assessing the impact of a federal 

statute on a state law; preclusion is the correct term when two federal statutes are 

involved. POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2236 (2014).

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 2 of 16
3

Before deciding whether the Act and the Code are in irreconcilable conflict, 

the Court must determine what each provides. The Act, as construed by 

Crawford, provides that it is unlawful for a debt collector to file a proof of claim 

in a Chapter 13 proceeding knowing the claim to be time-barred.2 As discussed 

below, the Code provides that it is permissible for a creditor to file such a proof of 

claim if expiration of the limitations period does not extinguish the creditor’s right 

to payment under applicable state law. 

“A creditor ... may file a proof of claim.” 11 U.S.C. § 501(a). Pursuant to 

this provision, “[w]hen a debtor declares bankruptcy, each of its creditors is 

entitled to file a proof of claim ....” Travelers Casualty & Surety Co. of America 

v. Pacific Gas & Electric Co., 549 U.S. 443, 449 (2007).

“In this title ... ‘claim’ means ... right to payment, whether or not such 

right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, 

unmatured, disputed, undisputed, legal, equitable, secured, or unsecured ....” 11 

U.S.C. § 101(5)(A). Thus, if a creditor has a right to payment he has a claim, and 

if he has a claim he is entitled to file a proof of claim.

“The basic federal rule in bankruptcy is that state law governs the substance 

of claims ....” Travelers, 549 U.S. at 450 (internal quotes omitted). This flows 

naturally from the proposition that “property interests are created and defined by 

state law, and unless some federal interest requires a different result, there is no 

reason why such interests should be analyzed differently simply because an 

interested party is involved in a bankruptcy proceeding.” Id. at 451 (internal 

quotes omitted). “Accordingly, when the Bankruptcy Code uses the word ‘claim’ 

– which the Code itself defines as a ‘right to payment,’ [citation omitted] – it is 

usually referring to a right to payment recognized under state law.” Id. Thus, if a 

 2 “Given our precedent, we must examine whether LVNV’s conduct – filing and 

trying to enforce in court a claim known to be time-barred – would” violate the Act. 758 

F.3d at 1259. “[W]e hold that LVNV’s conduct violated the FDCPA’s plain language 

....” Id. at 1262. 

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 3 of 16
4

creditor has a right to payment (i.e., a property interest) recognized by applicable 

state law despite the lapse of the limitations period, he has a claim for such timebarred debt and is entitled to file a proof of claim as to such time-barred debt. 

The plaintiff identifies Alabama as providing the applicable state law. 

(Doc. 21 at 1 n.1). In Alabama, a creditor’s right to payment is not eliminated by 

a limitations bar. Ex parte Liberty National Life Insurance Co., 825 So. 2d 758, 

765 (Ala. 2007) (“[A] statute of limitations generally is procedural and 

extinguishes the remedy rather than the right ....”) (internal quotes omitted).3

Thus, the defendant has a right to payment of its time-barred debt and a 

consequent entitlement to file a proof of claim as to the time-barred debt.

The plaintiff, while ignoring the Court’s analysis, insists that the Code does 

not “condon[e] ... the filing of proofs of claim on patently unenforceable debt.” 

(Doc. 21 at 8). According to the plaintiff, Section 101(5) requires a “bona fide

‘right to payment,’” which she defines as a “legally enforceable right.” (Id. at 2, 

17).4 The defendant scoffs that the plaintiff has pulled this definition of a “right” 

from a legal dictionary. (Doc. 22 at 8). And so she has, but the Supreme Court 

itself, in construing Section 101(5), has declared that “[t]he plain meaning of a 

‘right to payment’ is nothing more nor less than an enforceable obligation ....” 

 3 Accord Ex parte HealthSouth Corp., 974 So. 2d 288, 296 (Ala. 2007) (“When 

the statute of limitations expires, it does not extinguish the cause of action; instead, it 

makes the remedy unavailable.”); Pinigis v. Regions Bank, 942 So. 2d 841, 848 (Ala. 

2006) (“The whole theory of a nonclaim statute is to create a defense broader in its 

operation than the statute of limitations, not only barring remedies, but extinguishing 

debts and liabilities.”) (emphasis and internal quotes omitted).

4 The plaintiff also argues that the Code “discourages” the filing of stale proofs of 

claim in that the claim form requires the claimant to declare under penalty of perjury that 

the debtor owes the creditor money and that the claim is warranted by existing law or a 

nonfrivolous argument for its alteration, and in that the form warns that false claims can 

be penalized. (Doc. 21 at 17-18, 19). Even if the discouragement of a permitted practice 

had any relevance, these requirements do not discourage the filing of proofs of claim on 

time-barred debt like the plaintiff’s since, as discussed above, under Alabama law a 

creditor is still owed the debt after the statute of limitations expires.

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 4 of 16
5

Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552, 559 

(1990).5

Mr. Black6 provides seven definitions of a “right,” but the plaintiff quotes 

only one part of one definition. The entirety of that (fourth) definition reads as 

follows: “A legally enforceable claim that another will do or will not do a given 

act; a recognized and protected interest the violation of which is a wrong <a 

breach of duty that infringes one’s right>.” Black’s Law Dictionary 1436 (9th ed. 

2009). It is plain from this definition that “legally enforceable” means only that 

the law “recognize[s] and protect[s]” the interest giving rise to the claim, that is, 

that the claim is not a mere moral obligation or idiosyncratic opinion with which 

the law is not concerned. This dichotomy is made even clearer by Mr. Black’s 

second definition, which defines a “right” as “[s]omething that is due to a person 

by just claim, legal guarantee, or moral principle ....” Id. (emphasis added).7 It is 

equally plain that a right is “legally enforceable” in this sense whether or not the 

defendant can successfully assert an affirmative defense such as the statute of 

 5 Accord Federal Communications Commission v. NextWave Personal 

Communications Inc., 537 U.S. 293, 302-03 (2003); Cohen v. de la Cruz, 523 U.S. 213, 

218 (1998); Johnson v. Home State Bank, 501 U.S. 78, 83 (1991).

6 Henry Campbell Black, father of the law dictionary bearing his name.

7 Courts have often juxtaposed “moral” and “legally enforceable” obligations. 

E.g., Kern v. Kern, 360 So. 2d 482, 485 (Fla. App. 1978) (“Although a parent may suffer 

a moral obligation to assist children in acquiring an advanced education, we find nothing 

in either the jurisprudence or the statutes of this state which makes such a moral 

obligation legally enforceable.”); Koike v. Board of Water Supply, 352 P.2d 835, 839 

(Haw. 1960) (“The essence of a moral obligation is that it arises out of a state of facts 

appealing to a universal sense of justice and fairness, though, upon such facts no legally 

enforceable claim can be based.”); Bellamy v. Oklahoma Farm Mortgage Co., 278 

S.W.2d 180, 182 (Tex. App. 1925) (nothing prevented the defendants from “convert[ing]

into a legally enforceable obligation that which they were already morally bound to 

pay”). 

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 5 of 16
6

limitations.8 So long as the law recognizes and protects the interest at issue (here, 

the interest in being repaid a contractual debt), the resulting claim is legally 

enforceable even if the law’s protection is not limitless in time or scope. 

There is no indication that the Supreme Court has used the term 

“enforceable obligation” in any more restrictive sense than Mr. Black has used the

parallel term “legally enforceable claim.” The question presented in Davenport 

was whether restitution obligations imposed in state criminal proceedings are 

“debts” as defined by 11 U.S.C. § 101(11). Because “debt” means “liability on a 

claim,” id., the Court looked to the definition of “claim.” The petitioners argued 

in part that a restitution order could not represent a “right to payment” because the 

obligation could not be enforced in civil proceedings but only by threatening the 

probationer with revocation. 495 U.S. at 558-59. The Supreme Court did not 

regard this difference in “enforcement mechanism” as significant. Id. at 559-60. 

Its statement that a right to payment is “nothing more nor less than an enforceable 

obligation” signifies only that a right to payment is legally enforceable however 

the law chooses to enforce it – by civil litigation or otherwise. The Davenport

Court’s reliance on legislative history to show that the Code “contemplates that 

all legal obligations of the debtor ... will be able to be dealt with in the bankruptcy 

case,” id. at 558 (emphasis added, internal quotes omitted), further reflects that it 

used “enforceable obligation” only in Mr. Black’s sense of an interest recognized 

and protected by law. Moreover, Davenport expressly recognizes that the Code’s 

definitions of “claim” and “debt” are the “broadest possible,” id. at 558, 564 

(internal quotes omitted), and a definition of the embedded term “right to 

payment” that excludes obligations exposed to a limitations defense patently is not 

the broadest possible. Finally, to read Davenport as the plaintiff desires would 

directly contradict Travelers’ pronouncement that the parameters of a right to 

 8 As is generally true elsewhere, in Alabama the statute of limitations is an 

affirmative defense, not an element of the plaintiff’s claim. E.g., Special Assets, L.L.C. v. 

Chase Home Finance, L.L.C., 991 So. 2d 668, 675 (Ala. 2007).

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 6 of 16
7

payment are defined by state law, not federal law. In short, Davenport cannot 

plausibly be read for the proposition that a “right to payment” as contemplated by 

Section 101(5) ceases to exist the moment the statute of limitations expires.9

There are yet other reasons to conclude that the Code permits a creditor to 

file a proof of claim knowing the claim is time-barred under Alabama or similar 

law. For example, Section 101(5) defines a claim to include a right to payment 

that is “contingent” or “unmatured.” Even though the Code expressly recognizes 

that such claims are unenforceable (because no right to payment has yet ripened),10

it includes them in the definition of a claim. That is, the Code expressly 

contemplates the filing of proofs of claim on presently unenforceable claims.11

This is underscored by the Code’s procedure for addressing proofs of claim. 

If no party in interest objects, the claim is allowed as a matter of course. 11 

U.S.C. § 502(a). The objections a party in interest may raise include that the 

 9 Nor do later Supreme Court cases quoting Davenport’s “enforceable obligation” 

language support such a proposition. NextWave quoted Davenport only to support its 

conclusion that “a debt is a debt, even when the obligation to pay it is also a regulatory 

condition.” 537 U.S. at 302-03. Cohen quoted Davenport only to support its conclusion 

that “[a]n award of treble damages is an ‘enforceable obligation’ of the debtor, and the 

creditor has a corresponding ‘right to payment.’” 523 U.S. at 218. Johnson quoted 

Davenport only to support its conclusion that “a mortgage interest that survives the 

discharge of a debtor’s personal liability is a ‘claim’ within the terms of § 101(5).” 501 

U.S. at 83.

The Eleventh Circuit appears to have quoted this portion of Davenport just once, 

in support of its conclusion that “a judgment requiring payment of punitive and 

compensatory damages for a common cause of fraudulent conduct is a ‘debt’ as defined 

by the Bankruptcy Code in §523(a).” In re: St. Laurent, 991 F.2d 672, 679 (11th Cir. 

1993). Nothing in St. Laurent suggests the restrictive definition proposed by the plaintiff. 

10 11 U.S.C. § 502(b)(1) (upon objection, the Bankruptcy Court “shall allow such 

claim ... except to the extent that [inter alia] such claim is unenforceable ... for a reason 

other than because such claim is contingent or unmatured”). 

11 E.g., Bendall v. Lancer Management Group, LLC, 523 Fed. Appx. 554, 558 

(11th Cir. 2013) (“Contingent rights to payment need not be currently enforceable in order 

to constitute a claim.”). 

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 7 of 16
8

“claim is unenforceable,” id. § 502(b)(1), which would be unnecessary if proofs of 

claim on unenforceable claims were prohibited to begin with. Since one ground of 

unenforceability is the expiration of the limitations period,12 the Code clearly 

contemplates the filing of proofs of claim on claims barred by the statute of 

limitations, with such claims to be allowed without objection or disallowed upon

objection. 

Finally, the plaintiff’s restrictive definition of a claim is at odds with 

practice under the prior bankruptcy code, and she offers no sound basis for 

believing Congress rejected that practice when it enacted the Code. “In 1978, 

after almost 10 years of study and investigation, Congress enacted a 

comprehensive revision of the bankruptcy laws,” known as the Bankruptcy Act of 

1978. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 

50, 53 (1982). Among the many changes worked by the 1978 revision was the 

adoption of the current definition of a “claim.” In re: Keeler, 440 B.R. 354, 361 

(Bankr. E.D. Pa. 2009). Previously, “a claim had to be both proved and allowed in 

order for a creditor to receive a distribution.” Id.

13 Under the previous regime, “it 

has been held in a number of cases that a debt may be provable, even where the 

defense of the statute of limitations is good as against an action brought in the 

state courts ....” In re: Kuffler, 153 F. 667, 668 (E.D.N.Y. 1907); accord 

Hargadine-McKittrick Dry Goods Co. v. Hudson, 122 F. 232, 235 (8th Cir. 1903) 

(“Debts are not the less provable, within the meaning of the bankrupt act, because 

 12 “Section 502(b)(1) ... is most naturally understood to provide that, with limited 

exceptions, any defense to a claim that is available outside of the bankruptcy context is 

also available in bankruptcy.” Travelers, 549 U.S. at 550. Legion are the cases 

disallowing claims under Section 502(b)(1) based on a limitations defense. Recent 

examples include In re: Paterno, 2015 WL 735959 (9th Cir. BAP 2015); In re: Lewis, 

517 B.R. 615, 622 (Bankr. E.D. Va. 2014); and In re: Archdiocese of Milwaukee, 515 

B.R. 579, 585-86 (Bankr. E.D. Wis. 2014); In re: Mazyck, 521 B.R. 726, 730-31 (Bankr. 

D.S.C. 2014); In re: Washington, 2014 WL 5714586 at *13 (Bankr. D.N.J. 2014); In re: 

Morgan, 2014 WL 5449491 at *2 (Bankr. E.D. Tenn. 2014). 

13 More precisely, the debt had to be proved and the claim on the debt allowed.

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 8 of 16
9

the statute of limitations may be successfully pleaded against their allowance.”); In 

re: Solomons, 2 F. Supp. 572, 573 (S.D.N.Y. 1932) (“[T]he defense of the statute 

of limitations cannot be deemed properly to be an obstacle to the allowance [of a 

claim] unless it be interposed by some one ....”). The staleness of a debt did not 

affect its provability because “[t]he statute of limitations is a defense, and not a 

part of the affirmative claim.” In re: Kuffler, 153 F. at 668. The debt was owed, 

and could thus be proved, even though ultimate allowance of the claim might be 

denied if the limitations defense were properly raised. 

“We will not read the [1978] Bankruptcy Code to erode past bankruptcy 

practice absent a clear indication that Congress intended such a departure.” 

Davenport, 495 U.S. at 563. “The normal rule of statutory construction is that if 

Congress intends for legislation to change the interpretation of a judicially created 

concept, it makes that intent specific,” and “[t]he Court has followed this rule with 

particular care in construing the scope of bankruptcy codifications.” Kelly v. 

Robinson, 479 U.S. 36 47 (1986) (internal quotes omitted); accord In re: St. 

Laurent, 991 F.2d 672, 679-80 (11th Cir. 1993). The plaintiff has identified 

nothing in Section 101(5) or its legislative history suggesting that Congress, in 

adopting the “broadest possible” definition of “claim,” intended to overturn the 

longstanding rule that a limitations defense becomes relevant only after proofs of 

claim are filed, when the Bankruptcy Court (previously the referee) considers 

whether to allow an asserted claim. Any such argument would appear to be 

untenable.14 

 14 Because the statute of limitations is an affirmative defense that is lost if not 

properly asserted, there is a sense in which a time-barred claim is legally enforceable 

when the proof of claim is filed, subject to becoming unenforceable only later, if and 

when the defense is raised. Under this view, filing a proof of claim on a time-barred 

claim would be proper under the Code even accepting the plaintiff’s position that the 

claim must be enforceable when the proof of claim is filed. Because, as discussed in text, 

the Court rejects the plaintiff’s position, it is unnecessary to consider this possibility. 

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 9 of 16
10

“Based upon the broad definition of a claim found in section 101(5)(A), 

and based upon the provisions of section 501, which affords all entities that hold 

claims the statutory entitlement to file a proof of claim, numerous courts have 

upheld the right of an entity to file a proof of claim, even if that claim is clearly 

barred by the applicable statute of limitations.” Keeler, 440 B.R. at 363. For the 

reasons set forth above, the Court adds its voice to this chorus.15

In summary, except where expiration of the limitations period extinguishes 

the debt under applicable state law, the Code permits creditors to file proofs of 

claim in Chapter 13 proceedings on debts known to be time-barred, while the Act 

prohibits debt collectors from engaging in such conduct.16 There is thus an 

obvious tension between the Act and the Code. The questions become whether 

that tension rises to the level of an irreconcilable conflict and, if so, how that 

conflict is to be resolved.

 15 Other choristers include United States v. Moriarty, 8 F.3d 329, 334 (6th Cir. 

1993) (“[U]sing the Bankruptcy Code’s definition of the term ‘claim’ as a guide to 

interpret the term ‘claim’ in the federal priority statute, we conclude that the United 

States continues to have a ‘right of payment,’ and thus a ‘claim,’ against the debtor even 

though the United States is barred by the statute of limitations from bringing an action 

against the debtor for money damages.”); B-Real, LLC v. Rogers, 405 B.R. 428, 431 

(M.D. La. 2009) (“[T]he Bankruptcy Code itself contemplates a creditor filing a proof of 

claim on a time-barred debt and the Bankruptcy Court disallowing such claim after 

objection from the debtor.”); In re: Claudio, 463 B.R. 190, 195 (Bankr. D. Mass. 2012) 

(“[A] proof of claim based on a stale claim will be deemed allowed under § 501(a) unless 

the affirmative defense is raised in a filed objection.”) (internal quotes omitted); In re: 

Andrews, 394 B.R. 384, 388 (Bankr. E.D.N.C. 2008); In re: Williams, 392 B.R. 882, 886 

(Bankr. M.D. Fla. 2008) (“The creditor’s right to file a claim is not impacted by whether 

the statute of limitations has run ....); In re: Varona, 388 B.R. 705, 723-24 (Bankr. E.D. 

Va. 2008); and In re: Simpson, 2008 WL 4216317 at *2 (Bankr. N.D. Ala. 2008) (“The 

claims allowance process of the Bankruptcy Code contemplates that time-barred claims 

may be filed and expressly preserves the statute of limitations as a defense and a ground 

for disallowance of the claim.”). 

16 A “creditor” is defined in pertinent part as “[an] entity that has a claim against 

the debtor.” 11 U.S.C. § 101(10)(A). The plaintiff admits that the defendant purchased 

the subject debt, (Doc. 1 at 2), and the discussion in text establishes that the defendant 

has a “claim” despite the running of the limitations period. The defendant is thus a 

creditor under the Code. 

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 10 of 16
11

The answer to the second question is straightforward. “‘Where provisions 

in the two acts are in irreconcilable conflict, the later act to the extent of the 

conflict constitutes an implied repeal of the other one.’” EC Term of Years Trust 

v. United States, 550 U.S. 429, 435 (2007) (quoting Posadas v. National City 

Bank, 296 U.S. 497, 503 (1936)). The Act has not been amended in any relevant 

respect since its 1977 enactment, while the Code dates from no earlier than 1978. 

Thus, and as the plaintiff acknowledges, in case of irreconcilable conflict the Act 

must yield to the Code.17

The first question requires more discussion. The plaintiff insists there is no 

irreconcilable conflict because the defendant “can easily comply with both the 

Bankruptcy Code and the [Act] by simply refraining from filing proofs of claim 

premised on time-barred debts.” (Doc. 21 at 3; accord id. at 12 n.10, 16). The 

defendant argues that the two are in irreconcilable conflict “because [the Code] 

expressly prescribes the conduct allegedly prohibited by the [Act].” (Doc. 17 at 

3). 

The plaintiff relies for her position on Randolph v. IMBS, Inc., 368 F.3d 

726 (7th Cir. 2004). In Randolph, the defendant sent the debtor two dunning letters 

after the debtor’s Chapter 13 petition had been filed and her plan confirmed.

18 The 

Act prohibits false representations that a debtor is required to pay a debt 

immediately, and it also prohibits writing the debtor directly when she is 

represented by counsel, while the Code prohibits debt-collection attempts in 

 17 The Supreme Court has occasionally suggested that the later-enacted statute 

must or should also be the more specific statute. E.g., Smith v. Robinson, 468 U.S. 992, 

1024 (1984). The parties do not invoke this line of authority and, in any event, the Code 

is plainly the more specific in the only respects relevant to this lawsuit. While the Code 

specifically addresses the filing of proofs of claim on stale debts, the provisions of the 

Act on which the plaintiff relies do not reference proofs of claim at all but merely 

prohibit in general terms the use of deceptive, misleading, unfair or unconscionable 

means of collecting debts.

18 Because the three consolidated appeals in Randolph were “similar in material 

respects,” the Court “use[d] one as an illustration.” 368 F.3d at 728. 

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 11 of 16
12

violation of the automatic stay. Although the defendant’s conduct was thus 

prohibited under both regimes, the debtor’s remedies were different, with the Act 

imposing liability on a strict-liability basis (subject to a due-care defense) and the 

Code restricting the recovery of damages to willful violations of the stay. Id. at 

728-29. In this context, the Seventh Circuit ruled that the statutes were not in 

irreconcilable conflict because “it is easy to enforce both statutes, and any debt 

collector can comply with both simultaneously.” Id. at 730; see also id. at 731 

(“Overlapping statutes do not repeal one another by implication; as long as people 

can comply with both, then courts can enforce both.”).

Randolph addresses the situation where both statutes impose obligations on 

a party.19 In that context, it makes sense to frame the inquiry as whether the party 

can “comply” with both statutes, because each statute requires compliance with its 

corresponding obligation, and if the party can comply with its obligation under 

one statute only by failing to comply with its obligation under the other, the 

obligations are in irreconcilable conflict. E.g., Department of Transportation v. 

Public Citizen, 541 U.S. 752, 766-67 (2004) (“If it were truly impossible for [the 

agency] to comply with both § 350 and § 13902(a)(1) [both of which imposed 

“mandates”], then we would be presented with an irreconcilable conflict of 

laws.”).20

The ability to “comply” with both statutes, however, is not the proper test 

when, as here, the case does not concern a comparison of the obligations imposed 

 19 As does Simon v. FIA Card Services, N.A., 732 F.3d 259, 279 (3rd Cir. 2013), 

which the plaintiff also cites in support of her position. (Doc. 21 at 12 n.10). And as do 

the dozen or so lower court decisions cited by the plaintiff as following Randolph – all of 

which involve obligations under the Act and under the Code’s automatic stay and/or 

discharge injunction provisions. (Id. at 9-11). 

20 See also Simon, 732 F.3d at 280 (“If, as the Simons argue, a § 1692e(11) claim 

could arise from the fact that the ... letters and subpoenas did not include the ‘miniMiranda’ notice, the [defendant] would violate the automatic stay provision of the 

Bankruptcy Code by including the notice or violate the [Act] by not including the notice. 

This conflict precludes allowing a claim under § 1692e(11) ....”).

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 12 of 16
13

by one statute with the obligations imposed by another but rather a comparison of 

the obligations imposed by one statute with the rights conferred by another. In 

such a case, to speak of mutual compliance is nonsensical, because one does not 

“comply” with a right, one exercises it. The plaintiff is not urging that the 

defendant “comply” with both the Act and the Code, she is insisting that the 

defendant comply with the Act by surrendering its right under the Code to file a 

proof of claim on a time-barred debt. This is not the vindication of both statutes, it 

is the negation of one by the enforcement of the other. A clearer demonstration of 

irreconcilable conflict would be difficult to imagine.21 

The plaintiff’s other primary authority is POM Wonderful LLC v. CocaCola Co., 134 S. Ct. 2228 (2014). In POM Wonderful, the label on the 

defendant’s juice blend product prominently displayed the words “pomegranate 

blueberry” even though those juices represented only 0.5% of the product. The 

plaintiff sued under the Lanham Act for unfair competition in the form of a false 

or misleading product description. The defendant argued that the plaintiff’s suit 

was precluded by the Food, Drug and Cosmetic Act (“FDCA”), the implementing 

regulations of which apparently permitted use of the label. Id. at 2233-34. The 

Supreme Court disagreed, ruling that the Lanham Act (which “protects 

commercial interests against unfair competition”) and the FDCA (which “protects 

public health and safety”) serve to “complement each other in the federal 

regulation of misleading labels.” Id. at 2238, 2241. The plaintiff argues that the 

 21 Several sister courts in the Seventh Circuit, relying on Randolph, have 

determined that the Code does not preclude an action under the Act based on filing a 

proof of claim on a time-barred debt. E.g., Patrick v. Pyod, LLC, 39 F. Supp. 3d 1032, 

1034-35 (S.D. Ind. 2014); In re: LaGrone, __ B.R. __, 2015 WL 273373 at *4 (Bankr. 

N.D. Ill. 2015); In re: Brimmage, 523 B.R. 134, 139 (Bankr. N.D. Ill. 2015); Robinson v. 

eCast Settlement Corp., 2015 WL 494626 at *2 (N.D. Ill. 2015). These decisions 

generally rely on the defendant’s ability to “comply” with the Code by declining to file a 

proof of claim. As set forth in text, the Court concludes that this is not a proper 

expression of the test for irreconcilable conflict in the present context. Nothing in these 

opinions undermines the Court’s conclusion. 

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 13 of 16
14

contradictory treatment by the Act and the Code of proofs of claim on stale debts 

does not show irreconcilable conflict because, as in POM Wonderful, the statutory 

schemes “serve two separate purposes.” (Doc. 21 at 16).

The decision in POM Wonderful does not stand for the proposition that 

there can be no irreconcilable conflict between statutes when they serve different 

purposes. Nor could it, since it did not address the “high standard” of 

“irreconcilable conflict” to begin with but considered only how to “reconcile or 

harmonize” the two statutes. 134 S.Ct. at 2237.22 Even ignoring this threshold 

difficulty, the plaintiff has not explained, and the Court cannot apprehend, how 

two mutually exclusive statutory provisions can be rendered compatible simply by 

noting that Congress had different purposes in mind when enacting them. 

Suppose one statute authorizes all citizens to wear white shirts and another forbids 

all citizens to wear white shirts. Can it seriously be contended that these 

provisions are reconcilable because the purpose of one is to promote good taste 

and the purpose of the other is to promote good health? The difference in purpose 

may explain why the conflict exists, but it does not remove the conflict.

It is of course true that legislative history may eliminate what would 

otherwise be an irreconcilable conflict by revealing an intent to restrict the 

meaning or scope of a facially clear statutory provision. E.g., Watt v. Alaska, 451 

U.S. 259, 266, 273 (1981) (“declin[ing] to read the statutes as being in 

irreconcilable conflict without seeking to ascertain the actual intent of Congress” 

and finding from legislative history that Congress intended the new term 

“minerals,” which “by its literal terms applies to the facts before us,” to have a 

narrower meaning compatible with the existing statute). But the plaintiff has 

pointed to no indication that Congress intended the permission it granted in the 

 22 The Supreme Court found it unnecessary to assess the existence vel non of 

irreconcilable conflict because the defendant could not prevail even under the lower 

standard. Id. The plaintiff’s insistence that POM Wonderful was analyzed and decided 

under irreconcilable conflict principles, (Doc. 21 at 15), is simply incorrect. 

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 14 of 16
15

Code to file proofs of claim on stale debts to be qualified or withdrawn when the 

creditor is a debt collector. Simply pointing to Randolph’s description of the Act 

as “regulating how debt collectors interact with debtors” and of the Code’s 

“principal subjects” as “what assets are made available to which creditors and how 

much is left for debtors,” 368 F.3d at 731 – which is all the plaintiff offers, (Doc. 

21 at 16) – reflects no congressional intent for the Code to mean something less 

than what it plainly says. 

Statutory provisions are in irreconcilable conflict when “there is a positive 

repugnancy between them or ... they cannot mutually coexist.” Radzanower v. 

Touche Ross & Co., 426 U.S. 148, 155 (1976); accord J.E.M. Ag Supply, 534 U.S. 

at 143. Thus, for example, when two different limitations periods purport to apply 

to the same situation, they are in irreconcilable conflict. EC Term of Years Trust, 

550 U.S. at 435 (“We simply cannot reconcile the 9-month limitations period for a 

wrongful levy claim under § 7426(a)(1) with the notion that the same challenge 

would be open under § 1346(a)(1) for up to four years.”). Here, as long as state 

law preserves a right to payment after the limitations period expires, the Code 

authorizes filing a proof of claim on a debt known to be stale, while the Act (as 

construed by Crawford) prohibits that precise practice. Because, as to creditors 

under the Code that are also debt collectors under the Act, those contradictory 

provisions cannot possibly be given effect simultaneously, the provisions are 

positively repugnant and cannot mutually coexist. They are thus in irreconcilable 

conflict.23 And because there is irreconcilable conflict, the Act must give way to 

the Code.24

 23 In United States v. Devall, 704 F.2d 1513 (11th Cir. 1983), “[t]he Social 

Security Act’s anti-assignment provision purport[ed] to prohibit the assignment of social 

security benefits with very limited exceptions, while the Bankruptcy Code purport[ed] to 

authorize direct income deductions from the Social Security Administration.” Id. at 

1515. Because “the conflict between the Bankruptcy Code and the Social Security Act is 

apparent and cannot be reconciled without limiting one to accommodate the other,” the 

Court “conclude[d] that the provision of the later-enacted Bankruptcy Reform Act must 

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 15 of 16
16

CONCLUSION

For the reasons set forth above, the defendant’s motion to dismiss is 

granted. This action is dismissed with prejudice. Judgment shall be entered 

accordingly by separate order.

DONE and ORDERED this 23rd day of March, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE 

 

prevail over the more general anti-assignment provision of the Social Security Act.” Id. 

at 1515, 1518. The present situation parallels that in Devall, and with like result. 

24 The defendant has also cited and discussed authorities that, largely as a matter 

of policy, would preclude any action under the Act that so much as touches upon matters 

also addressed by the Code (such as the discharge injunction), and others that would 

permit actions on the periphery of bankruptcy but preclude those implicating conduct 

“inside” the bankruptcy system. Because the plaintiff’s action is clearly barred due to the 

irreconcilable conflict between the specific provisions of the Act and Code at issue, the 

Court need not consider these more sweeping approaches.

Case 1:14-cv-00322-WS-C Document 28 Filed 03/24/15 Page 16 of 16